11 Discip Proceedings

Lecture 11 Disciplinary proceedings ACTUAL MACHINERY: Time restrictions – adherence - one of criticms of then discip process was tt law soc took long time to get committees to investigate complaint; no of them took long time to deliver decisions

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principles of nat justice apply as with every other tribunal

SECTION 1 – DISCIPLNARY PROCEDURE s. 83(1) Legal Profession Act (Cap.161, 2001 Revised Edition): 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” lay persons are part of the Inquiry Panel Disciplinary Committee: a practicing solicitor, a retired judge or senior practitioner, one legal officer and one lay person Findings can be made available to public The Procedure under the Act: •

Flow chart on complaint procedure Written Complaint from a member of public received by the Law Society | Complaint referred to the Council of the Law Society | Council will refer the Complaint to Chairman, Inquiry Panel

| Chairman, Inquiry Panel appoints a two-man Review Committee to review complaint received | Review Committee decides | To dismiss complaint – Council must accept decision and inform complainant and lawyer of the dismissal of the complaint

| or To refer complaint to Inquiry Committee for an inquiry

| Inquiry Committee to commence inquiry and submit its findings and recommendation to the Council

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COMPLAINTS AGAINST ADVOCATES & SOLICITORS

1.1 Complaints Section 85 (1) Any complaint of the conduct of an advocate and solicitor shall in the first place be made to the Society and the Council shall refer the complaint to the Chairman of the Inquiry Panel.

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Process: Complaint to Law Society  Council refers to Chairman of Inquiry Panel Very impt: A “complaint” must be one touching upon the conduct of an advocate and solicitor

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Howard E Cashin [1989] 3 MLC 129 Complaint was tt agremenet was partr fee but cashin had charged client more – client felt that there was breach of agreement. Civil dispute. *Held: (CA) Not matter of any complaint which suffices to find the jurisdiction of the Disciplinary Committee Court referred to Harman v Park [1880] 66 AB 323, 328, where Lord Selborne held that the words “complaint of the conduct” must be taken to mean that there must be an “imputation of personal misconduct” on part of person concerned Here no misconduct and so her remedy lay in taking out civil suit against firm. Inq committee had no juris to entertain the complaint

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Complaint – a complaint that concerns a civil dispute simpliciter, unaccompanied by any allegation of misconduct, does not constitute a ‘complaint of the conduct’ within s. 85(1): Re Cashin Howard [1989] 3 MLJ 129 Cashin - Facts: The respondent was an advocate and solicitor of the Supreme Court and a senior partner of the law firm of Murphy and Dunbar. In the present proceedings, an order nisi was made to discipline him under s 80 of the Legal Profession Act (Cap 161) (the Act) and he was ordered to show cause why he should not be dealt with accordingly. The facts as far as they were undisputed were as follows. The complainant instructed the respondent to act for a company (the company) of which the complainant was, at all material times, a director and principal shareholder. The respondent was instructed to resist a winding-up petition (the petition) that had been presented against the company. The respondent accepted the instructions and assigned a legal assistant in the firm to assist him in the matter. The petition against the company was dismissed. Later, the taxed party and party costs which were awarded to the complainant were paid by the respondent`s law firm into the office account. The events that followed the dismissal of the petition were acutely in dispute. The complainant claimed that the respondent had agreed to limit the costs payable by her to $25,000 to the respondent`s law firm. The respondent denied that he had agreed to this and claimed that the agreement was that such costs would only be limited if the petitioner (of the winding-up petition) was unable to bear the party and party costs awarded against it. After that, the complainant wrote a letter, enclosing correspondence between herself and the respondent`s law firm, to the Law Society describing the events that had occurred and sought the help of the Society in resolving their dispute. Disciplinary proceedings against the respondent were started. He was charged with breach of r 3 of the Solicitors` Accounts Rules 1967 by paying client`s money into the office account, breach of s 109(1) of the Act in that he taxed party and party costs in excess of the agreed solicitor and client costs, and the wrongful appropriation of party and party costs which lawfully belonged to the complainant. The Disciplinary Committee (the Committee) hearing the matter determined that cause of sufficient gravity existed against the respondent in respect of all three charges. The Committee concluded that although the complainant`s letter to the Law Society did not expressly allege misconduct by the respondent, due allowance should be made for the fact that it was written by a lay person. There was thus a complaint under s 82(1) of the Act. The Committee also decided that each partner in the respondent`s law firm had a joint responsibility to ensure that there was no breach of the Solicitors` Accounts Rules. As regards the second charge, the Committee found that the complainant was a more credible witness than the respondent, and found the respondent guilty of the charge. In relation to the third charge, the Committee decided that the party and party costs which were appropriated to the office account wer e undoubtedly in accordance with normal bookkeeping practice, taken as profit for the year which was distributable as profit among the partners of the firm, and there was no evidence from an accountant or auditor to prove the contrary. Holdings: Helddischarging the order nisi to show cause: (1).A `complaint` meant an accusation of misconduct. A complaint that concerned a civil dispute simpliciter, unaccompanied by any allegation of misconduct, did not constitute a `complaint of the conduct` within s 82(1) of the Act. (2).In the complainant`s letter to the Law Society, she made no allegation of impropriety or misconduct on the part of the respondent. The letter merely sought guidance and help in the dispute with the respondent`s law firm. Since the letter made reference to and enclosed an exchange of correspondence between the complainant and the respondent`s law firm, it was necessary to examine these in some detail to see whether or not they

contained any allegation of misconduct against the respondent personally. (3).The letters showed that there was a dispute between the complainant and the respondent`s law firm as to the precise terms of the agreement that they had entered into regarding costs. There was no suggestion that the respondent had ever intended to deprive the complainant of anything that might be due to her. (4).This was a dispute which should be resolved in a civil court. A breach of contract simpliciter could not in any way constitute an allegation of misconduct. (5).The Committee hearing the matter took the approach that the complainant could not be expected to put her allegations in legal language or to refer to the provisions of the Act. This, however, ignored the fact that the complainant`s letter of complaint was drafted with the assistance of another advocate and solicitor. The conclusion of the Committee was thus against the weight of evidence, and without foundation. There was therefore no valid `complaint` against the respondent and the proceedings failed at the outset. (6).The first charge against the respondent was a charge of a personal character, and related strictly to the conduct of the respondent himself. It was agreed that at the time of the payment of the money into the office account, the respondent was not in Singapore and had nothing to do with the payment. (7).The Committee`s conclusion that there was joint responsibility for the payment failed to distinguish between `joint and several responsibility`, a civil responsibility, on the one hand and a disciplinary responsibility on the other. The exercise of disciplinary power was essentially punitive and penal and was exercised in appropriate cases only where there was personal complicity by the solicitor charged. In certain cases, the negligence of a solicitor in relation to a client account could amount to professional misconduct, `if it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession`. (8).In the present case, the Committee made no finding that the respondent was personally implicated in the breach of the rules, and there was no evidential basis for such a finding. The first charge therefore failed. (9).As regards the second charge, in deciding whether the Committee came to the correct finding that there was an oral agreement between the respondent`s law firm and the complainant limiting solicitor and client costs to $25,000, the whole of the evidence had to be examined to see if the evidence pointed to equal probability of an agreement which was as the respondent claimed in his defence. (10).The Committee`s findings were essentially matters of fact, but where it appeared from the evidence that the wrong decision in fact has been reached, it could be reversed, due regard being had to the court`s disadvantage in not seeing or hearing the witnesses. (11).There was no dispute that there was an agreement respecting costs, the dispute relating solely to the terms of the agreement. It was necessary to test the assessment of the Committee, on an objective litmus test, by reference to a number of specific issues. (12).The findings of the Committee on the second charge could not be sustained. Because of this decision, it was unnecessary for the court to deal with the alternative submission. (13).In a fundamental sense, the third charge was contingent upon the first charge. Since the respondent was not personally implicated in the first charge, the person responsible for the appropriation under the second charge was not the respondent. The Committee failed to appreciate that they had no basis for their inference. In the absence of evidence from the firm`s accountant or a public accountant, it was not a matter on which the Committee could properly infer that the appropriated money would, in any event, have been appropriated at a later date by the respondent and his partners. The onus of proof lay throughout on the Law Society to prove that wrongful appropriation took place. This onus was not discharged. 1.

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Council – “1st filter” Cannot reject even frivolous claims As long as concerns conduct of advocate and solicitor May on its own motion refer any information touching upon conduct of advocate and solicitor to Chairman of IC The council must inform the advocate and solicitor concerned of any complaint it refers to the Chairman of the IC Inquiry Committee – (previous position) – now no more Can reject frivolous claims Wee Soon Kim Anthony v Law Society

Wee Soon Kim Anthony v Law Society [2001] 2 SLR 145 Complainant lodged complainant

*Held: - Council has no discretion to reject a complaint on the basis that it is frivolous or vexatious, as long as it, ex facie, concerned the conduct of an advocate and solicitor (under s85.1) - The scheme contemplated by the (LP)Act is that the Inquiry Committee (IC) is the 1 st filter and the Council may not act as a filter prior to consideration by an IC. - However, the IC is not bound to entertain a frivolous complaint and is free to reject such a complaint if that is the conclusion after investigation -

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Council may on its own motion refer any info touching on conduct of adv and sol to chairman of inq panel Supreme court or judge thereof or AG can also lodge complaint  Can be sent to chairman of inq panel or discip committee if severe – choice given to them In event tt complaint sent, adv and sol must be informed by the council that it has been sent

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Four stages – complaint – ((review – inquiry – discip comm – court of 3 judges)) Why so many stages? – sol are officers of court and therefore have to see through al complaints

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Review committee:

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Review Committee will review the complaint within 2 weeks of its constitution (s. 85(7) the Act) Shall either direct the Council to dismiss the matter or refer the matter back to the Chairman of the Inquiry Panel Complaints against advocates and solicitors 85. —(1) Any complaint of the conduct of an advocate and solicitor shall in the first place be made to the Society and the Council shall refer the complaint to the Chairman of the Inquiry Panel. (6) Where any complaint or information touching upon the conduct of any advocate and solicitor is referred to the Chairman of the Inquiry Panel under subsection (1), (2) or (3), the Chairman shall immediately constitute one or more Review Committees consisting of — (a) a chairman, being the Chairman himself or a member of the Inquiry Panel who is an advocate and solicitor; and (b) a legal officer who has not less than 10 years’ experience, to review the complaint or information within 2 weeks of its constitution. [15/89;41/93;35/2001] (7) A Review Committee may, in the course of a review under subsection (6), require the complainant or the advocate and solicitor concerned to answer any inquiry or to furnish any record that the Review Committee considers relevant for the purpose of the review.

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Council will refer the application or complaint to the Chairman of the Inquiry Panel (s. 85(1) the Act), who shall constitute one or more review committee (s. 85(6) the Act)

New amendment to the Act enables the Chairman of the Inquiry Panel to constitute 1/ more Review Committees 2 Members = Chairman/ advocate and solicitor from Inquiry Panel + legal officer If Review Committee is of unanimous opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance, can dismiss the complaint  To sieve such complaints New section 85(21) makes it an offence for any person to make a complaint against an advocate and solicitor which he knows to be false Section 85(21) Any person who makes a complaint to the Society under this Part which he knows to be false in any material particular shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5000.

The Legal Profession (Amendment) Act 2001 A review process for all complaints received by the Law Society

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(*PRIOR) Wee Soon Kim Anthony v The Law Society of Singapore (No 2) [2001] 2 SLR 145, held that complaints must be referred to an Inquiry Committee (“IC”). It was for the IC to decide if the complaint was frivolous or lacked substance and should not be inquired into without hearing the solicitor [Editorial Note: Appeal allowed by the Court of Appeal on 15 January 2001] Facts The appellant Wee lodged a complaint with the Law Society against two solicitors alleging professional misconduct on their part. The Society wrote to inform Wee that his letter of complaint did not contain information of misconduct warranting a reference to an Inquiry Committee (“IC”). Wee was dissatisfied and applied to the High Court for a declaration that the Society should have referred his complaint against the two solicitors to the Chairman of the Inquiry Panel (“IP”). The judge directed that only one of four complaints be referred to the IP as there was no merit in the other three complaints. Wee appealed against this decision arguing that s 85(1) of the Legal Profession Act (Cap 161, 1997 Ed) (“the Act”) gave the Council of the Law Society (“the Council”) no discretion to reject his complaint on the basis of its merits, and that any complaint falling within its scope had to be referred to a duly-constituted Inquiry Committee. Held, allowing the appeal: (1) Under s 85(1) of the Act, for a complaint to be referred to the IP Chairman, it had to relate to the conduct of an advocate and solicitor. Once that requirement was satisfied, the Council was obliged to refer it to the IP Chairman. At this stage, the Council could not go into the merits of the complaint. Its function was extremely limited. It was for the IC to inquire into the merits as a first line of filter. It could recommend that a frivolous and vexatious complaint be dismissed. At this stage, when the IC’s report came before the Council, the Council had jurisdiction to decide how to proceed with the complaint. (2) As a safeguard against frivolous complaints, the complainant’s deposit could be used for payment of the costs and expenses of the IC. (*NOW) for a review process of all complaints received: s. 85 • when Council receives a complaint or information, refer it to the Chairman of the Inquiry Panel (“IP”), now constituting a Review Committee which will consist of the Chairman of the IP or a member of the IP and a legal officer of not less than ten years’ experience • the function of the Review Committee is to review every complaint to determine whether it should be dismissed outright or referred to the Chairman of the IP to constitute an IC for an inquiry • Review Committee can dismiss a complaint outright when the complaint or information is “frivolous, vexatious, misconceived or lacking in substance”: s. 85(8) • The Council must accept the unanimous view of the Review Committee to dismiss a complaint within seven days of receiving that direction and the report of the Review Committee: s. 85(9) • Council must then inform the complainant and furnish the complainant with the reasons of the Review Committee • Review Committee may require the complainant or the solicitor concerned to “answer any inquiry or furnish any record”: s. 85(7) • Amendment Act also removed the restriction of a maximum number of 40 solicitors • Chief Justice may now appoint any number of lay persons to the IP • Criminal sanction if any person makes a complaint to the Society which he knows to be false, liable on conviction to a fine not exceeding $5,000: s. 85(18) & (19) Complaints against advocates and solicitors 85. —(1) Any complaint of the conduct of an advocate and solicitor shall in the first place be made to the Society and the Council shall refer the complaint to the Chairman of the Inquiry Panel. (2) The Council may on its own motion refer any information touching upon the conduct of an advocate and solicitor to the Chairman of the Inquiry Panel. (3) Any Judge of the Supreme Court or the Attorney-General may at any time refer to the Society any information touching upon the conduct of any advocate and solicitor and the Council shall — (a) refer the matter to the Chairman of the Inquiry Panel; or (b) where the Judge or the Attorney-General requests that the matter be referred to a Disciplinary Committee, apply to the Chief Justice to appoint a Disciplinary Committee. (4) Notwithstanding subsections (1), (2) and (3), where 2 or more complaints or information touching upon the conduct of an advocate and solicitor have been received by the Council,

including any complaint which had been referred to a Disciplinary Committee under section 89, the Council may with the leave of the court refer to the Chairman of the Inquiry Panel one or more complaints or information which in its opinion are more serious in nature first and defer the referral of the remaining complaints or information. (5) Where any complaint or information touching upon the conduct of an advocate and solicitor is referred to the Chairman of the Inquiry Panel, the Council shall inform the advocate and solicitor concerned that it has done so. (6) Where any complaint or information touching upon the conduct of any advocate and solicitor is referred to the Chairman of the Inquiry Panel under subsection (1), (2) or (3), the Chairman shall immediately constitute one or more Review Committees consisting of — (a) a chairman, being the Chairman himself or a member of the Inquiry Panel who is an advocate and solicitor; and (b) a legal officer who has not less than 10 years’ experience, to review the complaint or information within 2 weeks of its constitution. (7) A Review Committee may, in the course of a review under subsection (6), require the complainant or the advocate and solicitor concerned to answer any inquiry or to furnish any record that the Review Committee considers relevant for the purpose of the review. (8) On the completion of a review under subsection (6), a Review Committee shall — (a) direct the Council to dismiss the matter if it is unanimously of the opinion that the complaint or information is frivolous, vexatious, misconceived or lacking in substance and give the reasons for the dismissal; or (b) in any other case, refer the matter back to the Chairman of the Inquiry Panel. (9) The Council shall, within 7 days of receiving any direction under subsection (8) (a) — (a) give effect to the direction to dismiss the matter; and (b) inform the complainant and the advocate and solicitor concerned of the dismissal of the matter and furnish the complainant with the reasons of the Review Committee in writing. (10) Where any complaint or information touching upon the conduct of any advocate and solicitor is referred back to the Chairman of the Inquiry Panel under subsection (8) (b), the Chairman shall immediately constitute an Inquiry Committee consisting of — (a) a chairman, being a member of the Inquiry Panel who is an advocate and solicitor; (b) a member of the Inquiry Panel who is an advocate and solicitor; (c) a member of the Inquiry Panel who is a lay person; and (d) a legal officer who has not less than 10 years' experience, to inquire into the complaint or information. (11) A member of a Review Committee who has reviewed any matter concerning any advocate and solicitor shall not be a member of an Inquiry Committee inquiring into the same matter. (12) An Inquiry Committee may meet for the purposes of its inquiry, adjourn and otherwise regulate the conduct of its inquiry as the members may think fit. (13) The Chairman of an Inquiry Committee may at any time summon a meeting of the Inquiry Committee. (14) Any questions arising at any meeting of an Inquiry Committee shall be determined by a majority of votes of the members of the Committee, and in the case of an equality of votes, the Chairman of the Inquiry Committee shall have a second or casting vote. (15) All the members of an Inquiry Committee shall be present to constitute a quorum for a meeting of the Inquiry Committee. (16) Any resolution or decision in writing signed by all the members of an Inquiry Committee shall be as valid and effectual as if it had been made or reached at a meeting of the Inquiry Committee where all its members were present. (17) Every complaint received by the Society shall be supported by such statutory declarations or affidavits as the Chairman of the Inquiry Panel or of an Inquiry Committee may require. (18) An Inquiry Committee may require any person making a complaint to the Society under this Part to deposit with the Society a reasonable sum not exceeding $500 to cover necessary costs and expenses. (19) Where the complaint is found to be frivolous or vexatious, the sum so deposited or such part thereof as the Inquiry Committee may determine shall be applied for the payment of those costs and expenses; otherwise the sum so deposited shall be returned to the person making the same. (20) A member of an Inquiry Committee shall, notwithstanding that he has ceased to be a

member of the Inquiry Panel on the expiry of his term of office, be deemed to be a member of the Inquiry Panel until such time as the Council has decided that the Inquiry Committee of which he is a member has completed its work. (21) Any person who makes a complaint to the Society under this Part which he knows to be false in any material particular shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.

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Inquiry Committee:

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Fact-finding & independent statutory body under the LPA Duties – Whitehouse Holdings Pte Ltd v Law Society – does not have to make conclusions

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Whitehouse Holdings Pte Ltd v Law Society [1994] 2 SLR 476 Role of IC is to investigate Does not have to make any conclusions on misconduct or whether any offence was committed Only considers whether or not there is a prima facie case for a formal investigation Extent and manner of application of the rules of natural justice by the IC? Subbiah Pillai v Wong Meng Meng & Ors [2001] 3 SLR 544 – read this case!!!! Facts An Inquiry Committee (“IC”) of the Law Society of Singapore was appointed to inquire into a complaint lodged by clients against the appellant, an advocate and solicitor. In the course of the IC process, the IC interviewed one of the complainants in the absence of the appellant. As the complainants alluded to an earlier complaint against the appellant about certain moneylending activities (“the moneylending complaint”), the IC gave notice to the complainants and the appellant to make written submissions to the IC. The appellant objected to the IC inquiring into the moneylending complaint, whereupon the IC invited the appellant to submit on whether the IC had jurisdiction to hear the complaint. Although the IC Chairman did not think that the appellant was entitled to the complainants’ written submission as of right, a copy of it was given to the appellant. A copy of the appellant’s submission was also given to the complainants. The appellant requested for an extension of time to make submission on the jurisdictional issue but the request was not granted. The appellant commenced the present action to challenge the manner in which the IC proceedings had been conducted and sought a declaration that the IC proceedings were null and void and for an injunction to restrain the IC from proceeding with the inquiry. It was contended that the IC had acted in breach of the rules of natural justice when it interviewed the complainant in private in the absence of the appellant, when a copy of the appellant’s explanation and written submission was given to the complainants, when the moneylending complaint was considered by the IC, when the IC used the complainants’ submission to question the appellant and when it refused to grant an extension of time to the appellant to make submission on the jurisdictional issue. In the court below, the judicial commissioner did not think that the rules of natural justice had been infringed in the course of the IC process and he dismissed the appellant’s claim. The appellant appealed. Held, dismissing the appeal: (1) Natural justice applied in the proceedings before the IC. However, the requirements of natural justice depended on the circumstances of each case, such as the nature of the inquiry, the powers of the tribunal and the subject matter dealt with. A body whose function was only to inquire into the facts to determine if the complaint or matter under inquiry should proceed further, was subject to less stringent requirements of natural justice as compared to a body whose function was to determine whether misconduct had been committed and/or to determine the punishment. (2) In the present case, determining the requirements of natural justice applicable to proceedings of the IC involved a consideration of the scope of s 86(6)(a)(ii) and (c) of the Legal Profession Act (Cap 161) (“LPA”). The IC process was inquisitorial in nature and the IC made no determination leading to the imposition of a punishment (except in a case under s 86(7) (a) and 88(1)). Although the IC was empowered to issue writs of

subpoena against any witness it required and to question witnesses on oath, such powers did not ipso factor render the process adversarial as the outcome of the process was determinative. (3) Natural justice required fairness to be observed at every stage of the process. In an inquisitorial process fairness did not demand that the vigorous regime applicable to trials should apply. Instead, the process should be informal, otherwise it would unduly burden the process and would be a waste of human and financial resources. Accordingly, fairness was not undermined when an IC interviewed a witness, including the complainant, in the absence of the person under inquiry. Nor was such a procedure unjust, as the process was purely inquisitorial. (4) Although the IC Chairman should not have invited or allowed the complainant to put in a written submission, such an invitation per se did not render the inquiry process unfair. However, having asked for and obtained the written submission of the complainants, the IC should have extended a copy of it to the appellant. Whilst the IC Chairman was wrong to have held that the appellant was not entitled to a copy of the complainants’ written submission, a copy of it was in fact furnished to the appellant. Thus, by the time the present summons was brought by the appellant, the IC had put right what the LPA and fairness required to be done. (5) The request by the IC for the appellant to submit on the jurisdiction of the IC to hear the moneylending complaint could not be faulted. As s 86(8) did not specify the period of notice to be given to the solicitor concerned, what was required was reasonable notice. On the facts, sufficient reasonable notice was given to the appellant to prepare his submissions on this issue. (6) The IC was justified in refusing to grant the appellant an extension of time to submit on the jurisdictional issue as the appellant failed to give sufficiently clear reasons to the IC to enable it to consider whether to grant any extension of time.

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IC also subject to judicial review: Carolyn Tan Carolyn Tan Beng Hui v Law Society (OS 1748 of 1998) Held: IC is subject to judicial review IC must adhere to the rules of natural justice But, leave to issue a prerogative writ would not be granted as a matter of course whenever an allegation of a breach of natural justice is made 

Statutory body with powers vested under the Act (s. 84) Appointment of Inquiry Panel 84. —(1) For the purpose of enabling Inquiry Committees to be constituted in accordance with this Part, the Chief Justice shall appoint a panel (referred to hereinafter as the Inquiry Panel) consisting of such number of advocates and solicitors (whether in practice or not) and lay persons as the Chief Justice may determine. [30/86;15/89;35/2001] (2) An advocate and solicitor shall be eligible to be appointed as a member of the Inquiry Panel if he has not less than 12 years’ standing. (3) A member of the Inquiry Panel shall be appointed for a term of 2 years and shall be eligible for reappointment. [15/89] (4) The Chief Justice may at any time remove from office any member of the Inquiry Panel or fill any vacancy in its membership. (5) The Chief Justice shall appoint a member of the Inquiry Panel to be the Chairman.

Composition of the IC  

The Panel is composed of solicitors of not less than 12 years’ standing, and lay persons The Chairman (who is to be a solicitor) will have the casting vote (s. 85(14) the Act) Complaints against advocates and solicitors 85. –(14) Any questions arising at any meeting of an Inquiry Committee shall be determined by a majority of votes of the members of the Committee, and in the case of an equality of votes, the Chairman of the Inquiry Committee shall have a second or casting vote.

Section 84 (1) For the purpose of enabling the Inquiry Committees to be constituted in accordance with this Part, the Chief Justice shall appoint a panel (referred to hereinafter as the Inquiry Panel) consisting of such number of advocates and solicitors (whether in practice or not) and lay persons as the Chief Justice may determine. (2) An advocate and solicitor shall be eligible to be appointed as a member of the Inquiry Panel if he has not less than 12 years’ standing (3) A member of the Inquiry Panel shall be appointed for a term of 2 years and shall be eligible for reappointment. (4) The Chief Justice may at any time remove from office any member of the Inquiry Panel or fill any vacancy in its membership. (5) The Chief Justice shall appoint a member of the Inquiry Panel to be the Chairman. Typical composition of an Inquiry Committee: 1. A Chairman – an advocate and solicitor (from the Inquiry Panel) 2. An advocate and solicitor not less than 12 years standing (IP) 3. A Lay person (ie. Engineers, Architects, Bankers, Insurers, Medical practitioners) (IP) 4. A Legal Officer of not less than 10 years experience ALL members present at an Inquiry Committee meeting shall constitute a quorum – section 85(15) – ie they have eq voting powers and this includes the lay person Time Frame (to commence inquiry) Section 86(1) Subject to subsection (2), (3) and (4), an Inquiry Committee shall, within 2 weeks of its appointment, commence its inquiry into any complaint or information touching upon the conduct of an advocate and solicitor and report its finding to the Council… *Where the Inquiry Committee feels that the solicitor concerned should be called upon to answer any allegation made against him… read statute – investigation must be done within 2 mths/ 3 mths fr date of apptment depending. 6 mths max - Notice must be given to the solicitor – section 86(6)

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This provision is imperative, rather than merely directory: Isaac Paul Retnam v The Law Society of Singapore [1976] 1 MLJ 195

Isaac Paul Retnam [1976] 1 MLJ 195 *Held: (1) Serious prejudice if notice is not given (2) Concerns no light matter (3) Explanation can justify that he acted in accordance with the law and is accordingly, not to be penalized exculpated 

Committee sits in a camera

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Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 2 SLR 476, it was held that the role of the Inquiry Committee is merely to investigate the complaint, it does not have to make any conclusions on misconduct or whether an offence was committed, but should consider whether there is a prima facie case for a formal investigation

Whitehouse Holdings - Facts The appellant Whitehouse retained one Tham Kok Leong (‘Tham’), an advocate and solicitor in and about the lease of a property. In about September 1990, Tham entered into a service agreement in respect of his premises at the property whereby Tham took an area of 3,200 sq ft for 36 months from 1 November 1990 at the monthly rent of $2 described as $1 for hire of fittings and fixtures and $1 for maintenance. The service agreement was prepared by Choy, Tham’s legal assistant. On 22 December 1992, Whitehouse lodged a complaint with the Law Society of Singapore alleging, inter alia, that Tham ‘acted fraudulently or had displayed gross improper

conduct in the discharge of his professional duty by fraudulently charging $2 for the use and occupation of …’ the premises. In accordance with s 86 of the Legal Profession Act (Cap 161, 1990 Ed) (‘the Act’) the complaint was inquired into by the inquiry committee (IC) and its report was considered by the Council of the Law Society in accordance with s 87. On 6 August 1993 the Council ‘accepted and adopted the IC’s findings. On 10 August 1993 the Council informed Whitehouse that it accepted the IC’s report that the complaint did not merit a formal investigation by a disciplinary committee (DC) and dismissed it. Whitehouse applied under s 96 for an order directing the Law Society to apply to the Chief Justice for the appointment of a DC. The High Court dismissed the application (see [1994] 1 SLR 315) and held that the IC failed to investigate the issue as to whether Tham displayed gross improper conduct with respect to the first part of the complaint. As the Council merely accepted and adopted the IC’s report, there was no relevant determination under s 87. The court below however declined to affirm the Council’s determination as it found that it was open to a disciplinary committee to hold, on the facts of the case, that there was professional misconduct. Whitehouse appealed. Held, allowing the appeal: (1) There was no objection to the Council’s practice in merely accepting and adopting the IC report. The Council need not supplement the reasons given by the IC in its report if it agreed with and accepted the IC’s findings. In this case, the Council had clearly determined that no formal investigation was necessary. (2) The words of s 96(4) did not oblige a judge to either affirm the Council’s determination or direct the application for the appointment of a DC. There was no mandatory obligation to make either of the two stipulated orders, although a judge’s powers are limited to the two orders there. (3) Although the IC made no specific finding on the issue of grossly improper conduct, there was in fact an inquiry into the complaint. The IC fully and thoroughly inquired into the substance of the first complaint and concluded that there was no need for a formal investigation. Tham clearly had notice of the allegation of gross improper conduct and was, in the circumstances, judged by his own peers. (4) A remedy in judicial review to compel the IC or the Council to further investigate the allegation of gross improper conduct was concurrently available to Whitehouse. However, its scope of application also extended to areas outside the ambit of ss 96 and 97. Section 96 was enacted as a specific appeal procedure for complainants dissatisfied with the Council’s determination dismissing a complaint and therefore should be the procedure of first resort. The court’s jurisdiction under s 96 was appellate and supervisory in nature and was not that of an original jurisdiction. The scope of s 96 clearly encompassed the circumstances here and it was not inconsistent with the supervisory powers of the court under s 96 to assume jurisdiction. (5) The IC’s role was merely to investigate the complaint. It did not have to make any conclusions on misconduct or whether an offence was committed but simply to consider whether or not there was a prima facie case for a formal investigation. However, the court should be slow to disturb or interfere with the IC’s findings of fact unless it can be shown that supporting evidence was lacking or there was some misunderstanding of the evidence or there are other exceptional circumstances justifying the court to do so. (6) Whatever the motives of the parties may be, a solicitor must ensure that he must not act whenever his own interests conflicted those of a client. It was clearly professional misconduct where a solicitor obtained an advantage from a client without advising the client to seek independent legal advice. Tham clearly incurred a substantial benefit and the evidence was clear that neither Choy nor Tham advised Koh to seek independent advice. The IC, and consequently the Council, were in error in not finding otherwise. There should be a formal investigation into the first part of the complaint that Tham displayed grossly improper conduct in the discharge of his professional duty. (7) The IC dismissed the second and third parts of the complaint on the basis that they were essentially matters in the nature of commercial disputes. The findings of the IC and, consequently, the Council’s determinations on these, would not be interfered with. 

Notice will be issued to the solicitor under s. 86(6) the act, inviting him to explain his conduct Inquiry 86. —(6) Where an Inquiry Committee is of the opinion that an advocate and solicitor should be called upon to answer any allegation made against him, the Inquiry Committee shall — (a) post or deliver to the advocate and solicitor concerned — (i) copies of any complaint or information touching upon his conduct and of any statutory declarations or affidavits that have been made in support of the complaint or information; and (ii) a notice inviting him to give within such period (not being less than 14 days) as may be specified in the notice to the Inquiry Committee any written explanation he may wish to offer and to advise the Inquiry Committee if he wishes to be heard by the Committee; (b) allow the time specified in the notice to elapse;

(c) give the advocate and solicitor concerned reasonable opportunity to be heard if he so desires; and (d) give due consideration to any explanation (if any) given by him.

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As a general rule, the complainant has no right to be heard: Yusuf Jumabhoy v Law Society of Singapore [1988] 1 MLJ 491; Seet Melvin v The Law Society of Singapore [1995] 2 SLR 323 Yusuf Jumabhoy - Facts: The plaintiff lodged a complaint with the Law Society against Teo Eng Leong, an advocate and solicitor, for extortion. The complaint was duly sent to the Inquiry Committee for investigation. The Inquiry Committee completed its investigation and concluded that a formal investigation was not required. The Council of the Law Society accepted the recommendation of the Inquiry Committee that the complaint be dismissed and accordingly informed the plaintiff. The plaintiff then wrote to the Council for its reasons in writing and also for certain particulars relating to the identities of the members of the Inquiry Committee and the manner in which they arrived at their decision and also to be given a copy of the said recommendation. The Council in its reply declined the plaintiff`s requests. The plaintiff, being dissatisfied with the determination of the Council, applied under s 96 of the Legal Profession Act (Cap 161) (the Act) for an order that the Law Society be directed to apply to the Chief Justice for the appointment of a disciplinary committee to investigate into the said complaint. Holdings: Held, dismissing the application: (1).Save for s 87(5), the Act had not prescribed any procedural requirements that the Inquiry Committee must follow in investigating a complaint against an advocate and solicitor. Section 87(5) was not intended to confer any rights on a complainant but to provide an opportunity to the advocate and solicitor complained against to reply to allegations against him and to request an oral hearing. There was nothing in s 87(5) to say that even if he were to request an oral hearing, he would be automatically entitled to one. (2).The plaintiff had no right to an oral hearing before the Inquiry Committee. (3).In any case, the plaintiff`s contention that he was not heard by the Inquiry Committee had no bearing on the substance of the application; (4).There was nothing in the plaintiff`s complaint which could amount to the commission of extortion on the part of Teo. (5).As the Inquiry Committee had not, on its own motion, under s 87(1)(b) of the Act, to deal with any other possible misconduct arising from the complaint, this court was in no position to consider it. Seet Melvin - Facts In 1986, the appellant Seet was charged together with one Tan and two other persons for abetting one Yee in trafficking 1,693.47g of diamorphine at Changi Airport. Initially, both Seet and Tan both engaged the same lawyer, Thangaveloo to act for them. Seet later discharged Thangaveloo and another lawyer Palakrishnan took over and eventually went on to represent him at trial. Thangaveloo conducted Tan’s defence at the trial at the same trial. Seet gave evidence implicating Tan and Thangaveloo was instructed not to cross-examine Seet. Nevertheless, in his closing submissions, Thangaveloo attacked Seet’s testimony as being a tissue of lies, fabricated to exonerate himself at Tan’s expense. This formed the main basis of Seet’s complaint as to Thangaveloo’s professional misconduct. The Law Society’s Inquiry Committee (IC) found that it did not merit a formal investigation and the Council of the Law Society adopted this finding. Thangaveloo informed the IC that he did not obtain any specific instructions from Seet in relation to his proposed line of defence. Seet then applied to the High Court pursuant to s 96 of the Legal Profession Act (Cap 161, 1994 Ed) alleging the following were instances constituting professional misconduct on the part of Thangaveloo: (a) Thangaveloo attacking Seet’s evidence in his submissions without having cross-examined Seet; (b) contrary to his instructions from Tan, Thangaveloo had alleged that Seet’s evidence was a pack of lies; and (c) in so doing, Thangaveloo misled the court. The judicial commissioner rejected these arguments, held that Thangaveloo acted in the proper discharge of his duties to Tan and to the court and dismissed Seet’s application. On appeal, Seet sought to adduce fresh evidence to show that Thangaveloo took specific instructions and would have known of his proposed line of defence. Seet then argued that: (a) Thangaveloo should not have continued to act for Tan when there was a clear conflict of interest; (b) as Thangaveloo initially acted for both Seet and Tan, he would have known what Seet’s proposed line of defence would be; (c) Thangaveloo misled the court in failing to follow Tan’s instructions and attacking Seet’s evidence in his submissions, without having cross-examined Seet; (d) as Thangaveloo did not cross-examine Seet, he was precluded from attacking the latter’s credibility; and (e) the IC acted in breach of natural justice in not affording Seet any opportunity to rebut Thangaveloo’s oral

explanations and that he was entitled to a right to an oral hearing before the IC since Thangaveloo had been given such a hearing. Held, dismissing both the motion and the appeal: (1) In a motion to admit fresh evidence, the appellant must show that the evidence could not have been produced before the court below despite reasonable efforts having been made. In this case, there was no reason why the documents could not have been placed before the judicial commissioner, or, for that matter, even before the IC when Seet first lodged his complaint. The motion failed at the first hurdle and was dismissed. (2) The issue of conflict of duties required the court to examine whether, by acting for Tan and making such submissions as he did against his former client Seet, real mischief and real prejudice resulted. Since Thangaveloo was not privy to any confidential information in relation to Seet’s proposed line of defence, no real mischief or prejudice was occasioned. (3) Thangaveloo’s duty was to act in Tan’s best interests. He only owed a residual duty to Seet, and this was the duty to respect the confidence reposed in him in relation to whatever information had been gleaned from Seet during his period of retainer. There was nothing in Thangaveloo’s submissions to indicate a breach of the duty of confidentiality or a contravention of the rules of professional privilege. (4) It should be permissible for an accused to attack the evidence of his co-accused, provided the particular aspects of the evidence of the latter had been tested in cross-examination, whether by the prosecution or by counsel for the other accused. It was therefore open to Thangaveloo to adopt the prosecution’s crossexamination of Seet and attack his credibility on that basis. (5) Counsel had absolute control over the conduct of the case on his client’s behalf, and unless it could be shown that he had acted contrary to his client’s interests, an allegation of misconduct would be difficult to sustain. On the facts, there was no indication that Thangaveloo acted contrary to Tan’s instructions, or made the submissions with the intent to mislead the court. (6) As a general rule, the complainant was not entitled to a right of hearing at IC proceedings. Unlike Thangaveloo, against whom the complaint was directed, Seet was unable to point to any statutory right to be heard at the inquiry. The IC proceedings were neither adversarial nor accusatorial. All that natural justice required was that the person or body charged with making the decision should act fairly. In the circumstances, and having regard to the IC’s role, the allegations as to breaches of natural justice were not tenable.   

Formal evidence is rarely taken and, even if the complainant or the solicitor is examined, they are not examined on oath although the Inquiry Committee has the power to do so pursuant to s. 86(11) the Act If the Inquiry Committee comes to the conclusion that the conduct is not serious, it has powers to recommend to the Law Society that a fine (of not more than $5,000) would be adequate in the circumstances The Council will inform the solicitor of its intention to impose a penalty and give him an opportunity to be heard by the Council (s. 86(7) the Act read with s. 88(3)) Inquiry 86. —(7) The report of the Inquiry Committee shall, among other things, deal with the question of the necessity or otherwise of a formal investigation by a Disciplinary Committee and, if in the view of the Inquiry Committee no formal investigation by a Disciplinary Committee is required, the Inquiry Committee shall recommend to the Council — (a) a penalty sufficient and appropriate to the misconduct committed; or (b) that the complaint be dismissed. (11) Subsections (2) to (6) of section 91 shall apply, with the necessary modifications, in relation to an Inquiry Committee as they apply in relation to a Disciplinary Committee and the references in those subsections to a Disciplinary Committee shall be read as references to an Inquiry Committee. Council’s power to order penalty 88. —(3) Before the Council makes an order for the payment of a penalty under this section, it shall notify the advocate and solicitor concerned of its intention to do so and give him a reasonable opportunity to be heard by the Council. Report of the Inquiry Committee – Section 86(7) Section 86(7) The report of the Inquiry Committee shall, among other things, deal with the question of the necessity or otherwise of a formal investigation by a Disciplinary Committee and, if in the view of the Inquiry Committee

no formal investigation by a Disciplinary Committee is required, the Inquiry Committee shall recommend to the Council – (a) a penalty sufficient and appropriate to the misconduct committed; or (b) that the complaint be dismissed. 

Despite s. 66 of the Act (which governs confidentiality of Council and Inquiry Committee proceedings), both the respondent and complainant are entitled to a copy of the Inquiry Committee’s Report upon request: Abraham v Law Society of Singapore [1991] 3 MLJ 359 Facts: The plaintiff is an advocate and solicitor against whom a complaint was made to the Law Society of Singapore (the Law Society). An inquiry committee was convened to investigate into the matter. A copy of the complaint was forwarded to the plaintiff and he was invited to give a written explanation to the inquiry committee and to appear before it. The plaintiff did both. On 6 June 1990, the executive secretary of the Law Society informed the plaintiff that the inquiry committee was of the view that no formal investigation before the disciplinary committee was necessary but had recommended that a penalty be imposed against him for improper conduct. He was also informed that before the Law Society Council imposed a penalty on him the council wished to know whether he wished to be heard pursuant to s 85(3) of the Legal Profession Act (Cap 161) (LPA). The plaintiff indicated that he wished to be heard and he wrote to ask for a copy of the inquiry committee report. The executive secretary indicated that the society would not accede to the request unless directed to do so by the court, thereby necessitating this application. The plaintiff argued that the words `reasonable opportunity to be heard` in s 85(3) necessarily implied that the plaintiff was entitled to know what the case against him was and for this purpose he is entitled to a copy of the report. Holdings: Held , dismissing the application: (1).To effectively have a reasonable opportunity to be heard, the plaintiff had to know what facts and other materials the council had before it. (2).There are two aspects of natural justice, ie impartiality and fairness. By denying him access to the report, the council was being unfair. (3).There was no cause or matter pending against the Law Society and therefore no order for discovery could be made against the Law Society. The appropriate remedy was a declaration. Proceedings of Council and Inquiry Committee to be confidential 66. —(1) Except insofar as may be necessary for the purpose of giving effect to any resolutions or decisions of the Council and any Inquiry Committee, confidentiality shall be maintained in all proceedings conducted by the Council, its staff and the Inquiry Committee. [15/89] (2) Notwithstanding subsection (1), the Chief Justice or the Attorney-General may require the Council to disclose to him any matter or information relating to any complaint of misconduct or disciplinary action against any advocate and solicitor. Report may contain recommendation for – i. Dismissal of the complaint (High % of cases with such outcome!) ii. Penalty sufficient and appropriate to the misconduct – max. $5000 iii. Formal investigation by a Disciplinary Committee Other possible outcomes… iv. If additional information is received touching on or evidence of the conduct of the advocate and solicitor concerned, the Inquiry Committee may decide on its own motion to inquire and report to the Council, after giving notice to him – section 86(8) v. If information or evidence, in the course of the inquiry, is received which discloses an offence under any written law, the IC shall record it in its report to the Council – section 86(9) vi. Withdrawal of a complaint at any stage before the Council sends it to the IC or during the IC stage, or at its conclusion, the Council can direct the IC to continue the inquiry as if the complaint was made by the Society – section 86(10) because a lot of complainants adter time decide not to complain and they may have been tampered with!

Powers of the Inquiry Committee i. Appoints any person to assist it ii. Produce books, documents, or papers (subpoena) iii. Requires advocate and solicitor to give all the information in relation to books -

Council to consider report within 1 month of receipt of the report

i. ii.

Possible outcomes – No formal investigation required No cause of sufficient gravity exists for a formal investigation but that an advocate and solicitor should be ordered to pay a penalty – max $5000 iii. There should be a formal investigation by a Disciplinary Committee iv. Matter to be adjourned for consideration or be referred back to the Inquiry Committee for reconsideration or a further report

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If Inquiry Committee recommends that there shall be a formal investigation, the Council shall determine accordingly (Council has no discretion to do otherwise) Re an Advocate and Solicitor, ex parte the Law Society of Singapore for Judicial review [1987] 2 MLJ, 31 (per Justice Lai Kew Chai) –  “Since the Inquiry Committee in its report has considered that there should be a formal investigation, the Council of the Law Society was required by (now section 87(2)(a) of the LPA) to determine that there should be a formal investigation by a Disciplinary Committee. The Council has no discretion to act otherwise.”

If Inquiry Committee feels that the complainant should be further investigated, recommend that it be referred for formal investigation before a Disciplinary Committee Council of Law Society must then send the complaint to a Disciplinary Committee (s. 87(2) of the Act read with S. 89(1)) Council’s consideration of report 87. —(2) If the Inquiry Committee in its report recommends — (a) that there should be a formal investigation, then the Council shall determine accordingly under subsection (1); or (b) that a formal investigation by a Disciplinary Committee is not necessary, the Council may, if it disagrees with the recommendation, request the Chief Justice to appoint a Disciplinary Committee. Application to appoint Disciplinary Committee 89. —(1) Where the Council determines under section 87 that there should be a formal investigation, the Council shall immediately apply to the Chief Justice to appoint a Disciplinary Committee which shall hear and investigate the matter. -

But if inq committee says that there shld NOT be formal investigation, council stil has discetion to proceed otherwise Section 87(3) Where the report of the Inquiry Committee discloses the commission of – (a) any other misconduct by the advocate and solicitor which has not been referred to or inquired into by the Inquiry Committee, the Council shall, if it determines that there should be a formal investigation of such misconduct, have power to prefer such charge against the advocate and solicitor as it thinks fit with respect to that misconduct; or (b) any offence involving fraud or dishonesty by the advocate and solicitor, the Council shall immediately refer the matter to the police for investigation.

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Section 94A (pertaining to fraud or dishonesty) – see below

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Council to inform the advocate and solicitor concerned and the person who made the complaint of the matter in which it has determined the complaint, and shall upon request of the persons, in the event there is no formal investigation, to furnish him with reasons in writing – section 87(4) Advocate and solicitor to be heard before imposition of penalty

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notified and given “reasonable opportunity to be heard by the Council” before imposition of the penalty – section 88(3) – fairness – to know case against him Penalty: Maximum of $5000 (imposed by the Council), paid to the Consolidated Fund – section 88(1) Penalty is considered as a judgment debt: J Abraham v Law Society of Singapore [1991] 3 MLJ 359, 361  Entitled to ask for inq committee report based on case  Rules of nat justice – u must know case against u to make appeal to council

Dissatisfied Complainants (Section 96) Section 96 (1) Where a person has made a complaint to the Society and the Council has determined – (a) that a formal investigation is not necessary; or (b) that no sufficient cause for a formal investigation exists but that the advocate and solicitor concerned should be ordered to pay a penalty, that person, if he is dissatisfied with the determination, may within 14 days of being notified of the Council’s determination apply to a Judge under this section.

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Reasons for dismissal should be readily comprehensive to the complainant – because lay person Should be ordinarily sufficient both to inform the parties of the basis of the decisions and enable the court, if appropriate, to review the matter on appeal: Yusuf Jumabhoy  A lot of complaints take out OS and take up the matter – challenge decision of law soc  In cashin’s case – charged with breach of rule 6 – sol accts rules – another lawyer was com,plaiantn and of own accord brought it up to chambers. When judge agreed tt this be referred to discip committee – complainatnt takes over matter and alw soc is no longer in the picture  Everything is now in the name of complainant – if he wins, he gets costs and if he loses he has to pay csots to respondent concerned Both the respondent and the complainant are entitled to a copy of the Inquiry Committee’s Report upon request: Abraham v Law Society[1991] 3 MLJ 359 The complainant is entitled to the IC’s report: Low Gim Har v Low Gim Siah [1992] 1 SLR 166 Low Gim Har v Low Gim Siah [1992] 1 SLR 166 If the complainant succeeds, all further proceedings shall be brought in his name. The Law Society is not involved in the matter then.

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Can the Respondent intervene in the proceedings? - NO, since the matter is essentially one between the complainant and the Law Society – Wee Soon Kim (below) Wee Soon Kim v Law Society [2001] 4 SLR 25 IC and Council dismissed the action Wee took out procedure and tried to intervene (Order 15 proceedings) Held: Not entitled to use ROC proceedings i. Law Society is the one to be heard – cannot act further than what the Law Society has to say. ii. Matter is between the complainant and the Law Society, thus, no locus standi •

Disciplinary Committee:

Duties… i. To see whether it has jurisdiction ii. Rule against bias – most demanding: Kalpanath Singh [1992] 2 SLR 641  Case very signif – prev, discip comm headed by retired judge

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At fn, he met witness of respondent wo was abt to give evid – hearing still going on – heard to utter these words – ‘how can u give evid for tt useless fellow’?

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Chief justice then stated rule against bias

Facts The applicant Kalpanath was an advocate and solicitor. The disciplinary committee (DC) of the Law Society found him guilty of misconduct and asked him to show cause before a court of three judges. Singh applied for an order of certiorari to quash the DC’s findings and determination on the ground that the chairman of the DC, one CS was biased. Kalpanath alleged that CS met with his legal assistant SS twice during the currency of the DC’s hearings, and threatened or warned SS and suggested to SS that he (CS) had made up his mind about the veracity of the witness. SS was a material witness for Kalpanath in the DC proceedings. It was argued that the whole DC was tainted with CS’s bias or apparent bias. At the commencement of the application for certiorari, CS (the respondent) made two preliminary objections: (a) Kalpanath was not entitled to rely on statements made in CS’s affidavits as additional grounds in support of his case as these were new grounds which took CS by surprise; and (b) Kalpanath’s application to cross-examine CS on his affidavits. It was also suggested that Kalpanath was not entitled to subject the DC’s decision to judicial review as the matter would be considered by the court of three Judges. Held, quashing the findings of the DC: (1) No amendment to the notice of motion was required. If CS’s own admissions were capable of providing additional legal grounds to impugn his decision, Kalpanath was entitled to rely on them. There was no question of CS or his counsel being taken by surprise. (2) The nature of the disputes between CS and SS on the one hand, and between Kalpanath and CS on the other, made this an appropriate case that CS submit to cross-examination. The difference between the ‘exceptional case’ test and the ‘justice of the case’ test was not one of substance. Grave injustice might have been caused to Kalpanath if he was not allowed to test the truth of CS’s account of the conversations. The truth of SS’s account was central to Kalpanath’s primary case just as much as the truth of CS’s account was central to his defence. If upheld, the objection would result in denying to Kalpanath the natural justice which he alleged had already been denied him by CS. Not only was Kalpanath’s career at stake, but more importantly, confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS were immune from cross-examination. (3) ‘Show cause’ proceedings were different from judicial review proceedings, both with respect to the law as well as procedure. In show cause proceedings, the court went into the merits of the findings and determination of the DC on the basis of the evidence recorded by the DC. It did not hear oral evidence at all. In the latter, the court did not deal with the merits of the decision but with its legality on ordinary administrative law grounds. Bias, as an aspect of procedural impropriety, was one of the grounds. The DC’s decision was therefore subject to judicial review notwithstanding that Kalpanath might still have the right to show cause. (4) Bias may be actual, apparent or imputed. The important matter was not what Kalpanath might think about the judge but the appearance, as it presented itself to the objective observer. The court would set aside as void an award of a tribunal which was infected by the appearance of a real likelihood of bias or if a reasonable and fairminded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for Kalpanath was not possible. (5) The test for bias should be referable to the contents of the bias rule. Context was important. In judicial proceedings, the rule was most demanding. A judge was expected to maintain the highest standard of conduct in the exercise of his functions. He must bring an open and impartial mind to the determination of the dispute before him and not act in any way which compromised the integrity of the judicial process. The standard required by the chairman of the DC under the Legal Profession Act (Cap 161) was just as high, and was commensurate with the standing of that office, having regard to the statutory qualifications for holding that office and the powers of the committee. A decision-maker should not have any contact with any party to the proceedings or any of his witnesses in the absence of the other party or his counsel.

(6) Kalpanth made out a case of apparent bias. An objective assessment of the evidence led to such conclusion. To a member of the public, CS’s advice given to SS at the first encounter could reasonably mean or imply that CS did not believe SS would be an independent or impartial witness because he was Kalpanath’s witness. It did not matter whether at that time CS was aware of the nature and substance of the evidence that SS would be giving. Since CS had great experience in the conduct of trials and disciplinary inquiries, it must have occurred to CS that SS would not have been called to give evidence on behalf of Kalpanath unless his evidence was favourable to the latter. Against the known background that SS was Kalpanath’s employee, CS’s advice would have engendered a reasonable suspicion that CS had formed the view that there was a possibility of SS giving untruthful evidence in favour of Kalpanath, or that SS somehow, had been persuaded to give such evidence. (7) Similarly, CS’s utterances to SS at the second meeting might give the impression to reasonable people that SS’s evidence was not being believed because of his relationship with Kalpanath and not because it was unworthy of belief on its own merits. The reference, direct or indirect, to the relationship between SS and Kalpanath during the second conversation would have reinforced the perception of the state of mind of CS at the first encounter. The fact was that CS talked to SS on both occasions on the same subject matter: SS’s testimony at the inquiry, in a context when SS was an employee of the applicant. There was thus evidence on which a reasonable person might believe that CS might or could not bring an unprejudiced mind to the disciplinary inquiry. The contents of the two conversations gave an appearance of a real likelihood of bias. (8) Although the other members of the DC filed affidavits stating that CS had not influenced or attempted to influence their decision, it would not be proper to count heads and say there was a majority of unbiased members. One cannot tell to what extent the bias of even one magistrate, especially he be a chairman, may influence the decision of the rest. One had to look at the whole picture. (9) CS participated in the proceedings and strenuously resisted Kalpanath’s application, but only because Kalpanath put his case at a level at which CS was given no choice but to defend his conduct and reputation. Kalpanath failed to prove the main charge of actual bias in the form of the threat to SS. If the motion had been based solely on this charge, it would have been dismissed. However, Kalpanath succeeded on a much less serious charge. In the circumstances, each party should pay his own costs. Composition of a Disciplinary Committee Panel of retired judges or solicitors of 12 years’ standing, one person who is a practicing solicitor, one legal officer, and one lay person from the Inquiry Panel (s.90 the Act)  The lay member will be paid, but will have no voting rights (s. 90(6) the Act) Appointment of Disciplinary Committee 90. —(1) The Chief Justice may from time to time appoint one or more committees comprising — (a) a chairman from a panel appointed by the Chief Justice, being retired Judges or persons who have had not less than 12 years’ standing as advocates and solicitors; (b) an advocate and solicitor who has in force a practising certificate; (c) a legal officer who has at least 10 years’ experience; and (d) a member of the Inquiry Panel who is a lay person, to be known for the purposes of this Act as Disciplinary Committees. [30/86;35/2001] (2) A Disciplinary Committee shall be appointed in connection with one or more matters or for a fixed period of time or as the Chief Justice may think fit. [30/86] (3) The Chief Justice may at any time revoke the appointment of any Disciplinary Committee or remove any member of a Disciplinary Committee or fill any vacancy in a Disciplinary Committee. [30/86] (4) Every Disciplinary Committee shall appoint a solicitor to be the secretary of that Disciplinary Committee. (5) The production of any written instrument purporting to be signed by the Chief Justice and making an appointment, revocation or removal referred to in this section shall be evidence that such appointment, revocation or removal has been duly made. 

(6) The lay person who is a member of a Disciplinary Committee shall not vote on any question or matter to be decided by the Disciplinary Committee and need not be present at every meeting of the Disciplinary Committee. [30/86] (7) Except as provided in subsection (6), all members of a Disciplinary Committee shall be personally present to constitute a quorum for the transaction of any business. [30/86] (8) Any question arising at any meeting of a Disciplinary Committee shall be determined by a majority of votes of the members of the Committee, and in the case of an equality of votes, the chairman of the Committee shall have a second or casting vote. [35/2001] (9) A member of a Disciplinary Committee appointed under subsection (1) (a) who is not a practising advocate and solicitor shall be paid for each case such remuneration as the Chief Justice may determine. -

4 members in each committee Except as provided in subsection (6) (Lay person), all members of a Disciplinary Committee shall be personally present to constitute a quorum – section 90(7) Lay person shall not vote on any question or matter to be decided by the Disciplinary Committee and need not be present at every meeting – Section 90(6)  But occasionally most inq committee members ask for their opinion – stimes advice very good Teo Choo Hong [1995] 2 SLR 594 (Objected to the presence of lay person)

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Teo Choo Hong [1995] 2 SLR 594 *Held: Effect of subsections (6) and (7) of s. 90 was that – The lay member was not counted as a member for the purpose of constituting a quorum of the Disciplinary Committee ‘for any transaction of any business’ (which must of necessity include the hearing of evidence of witnesses receiving and examining documents and listening to arguments made by the parties concerned “Meeting” in s. 90(6) meant not only an assembly of the members themselves but also included a hearing where parties concerned appeared to give evidence and advance arguments No breach of the rules of natural justice in the present situation, as the function of the lay member was merely that of an observer – i. He had no right to vote; ii. Was not required to be present at every meeting; and iii. Was not counted as a member for the purpose of constituting a quorum

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If Inquiry Committee recommends that no formal investigation is necessary, and if the Council disagrees, the Council may apply to the Chief Justice to appoint a Disciplinary Committee (s. 87(2)(b) the Act) Council’s consideration of report 87. —(2) If the Inquiry Committee in its report recommends — (b) that a formal investigation by a Disciplinary Committee is not necessary, the Council may, if it disagrees with the recommendation, request the Chief Justice to appoint a Disciplinary Committee.

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Disciplinary Committee is a judicial body and are quasi-criminal in nature: Legal Profession (Disciplinary Committee Proceedings) Rules (Cap. 161, Sections 82A(14) and 91(1), R2, 2003 Revised Edition)

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Re Teo Choo Hong [1995] 2 SLR 594, held that the effect of subsections (6) and (7) of s. 90 of the Act was that the lay member was not counted as a member for the purpose of constituting the quorum of the disciplinary committee.

Even though the lay member of the Disciplinary Committee had not been present for the greater part of the hearing, there was no breach of the rules of natural justice as the function of the lay member was merely that of an observer Teo Choo Hong - Facts The respondent solicitor Teo acted as solicitor for two brothers, HTM and HTB, in an attempted sale of a piece of property (the property) which was mortgaged to Malayan Banking Bhd. The transaction was aborted due to objections by the mortgagee bank and in a trial that ensued, the trial judge found that Teo did not tell the truth while giving testimony. The trial judge then lodged a complaint to the Law Society of Singapore about Teo’s conduct. The Law Society’s disciplinary committee (DC) found that it had no jurisdiction to hear and investigate the first charge regarding the alleged evasion of stamp duty and defrauding the bank, but found the other two charges against Teo to have been made out. Upon the Law Society’s ensuing application, the High Court ordered Teo to show cause why he should not be dealt with under s 83 of the Legal Profession Act (Cap 161) (the Act). As a preliminary point, Teo argued that DC’s decision was void as the lay member of the DC was not been present throughout the greater part of the hearing and had not heard all the evidence and submissions presented before the committee. Held, dismissing the preliminary point and discharging the order to show cause: (1) The effect of ss 90(6) and 90(7) of the Legal Profession Act (Cap 161) (‘the Act’) was that the lay member did not count as a member for the purpose of constituting the quorum of the DC ‘for the transaction of any business’. This included the hearing of witnesses’ evidence, receiving and examining documents and listening to parties’ arguments. The term ‘meeting’ in s 90(6) included a hearing in which the parties gave evidence and advanced arguments. (2) There was no breach of the rules of natural justice in the present situation. The lay member’s function was merely that of an observer. He had no right to vote, was not required to be present at every meeting and was not included as a member for the purpose of constituting a quorum. (3) In relation to the second charge, in the absence of any improper motive on Teo’s part, the alteration of the date of the option per se was not improper, as such alteration had no effect on the option itself. In relation to the third charge, the Law Society failed to prove beyond reasonable doubt that the respondent had given false evidence in S 4722/85 o

Determinations made by a Disciplinary Committee – Section 93 Procedure for conducting disciplinary proceedings is governed by the LPA (Disciplinary Committee Proceedings) Rules 2002 Not merely power but duty that must be discharged: Section 93(1) After hearing and investigating any matter referred to it, a Disciplinary Committee shall record its finding in relation to the facts of the case and according to those facts shall determine – (a) that no cause of sufficient gravity for disciplinary action exists under section 83; (b) that while no cause of sufficient gravity for disciplinary action exists under that section the advocate and solicitor should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or (c) that cause of sufficient gravity for disciplinary action exists under that section.

i. ii.

Time frame to complete report: 6 months – section 93(3) Findings and determination of the Disciplinary Committee shall be made public in the Singapore Law Gazette or in such other media as the Council may determine (“adequately inform the public”) – section 93(5) It is council that draws the charges – see case: Re: an Advocate and Solicitor [1978] 2 MLJ Pg 6.  The disciplinary committee must investigate all charges. If the determination of the Disciplinary Committee is that which no cause of sufficient gravity exists for disciplinary action, but he should be reprimanded or ordered to pay a penalty, the Council shall – if it agrees with the Disciplinary Committee, reprimand the advocate and solicitor; or if it disagrees, proceed to make an application for show cause proceedings under section 98 (ie. Ref. to ss. (b); See also, section 94(3))

NB: Section 88(4) – A Notice must be published in the Gazette at the respondent’s expense if reprimanded or ordered to pay a penalty. Also, note the new section 94A, empowering the Council to apply forthwith to the High Court for an order calling upon an advocate and solicitor to show cause where he has been convicted of an offence involving fraud or dishonesty. Implications of section 94? - Council of the Law Society does not have to refer the matter to a Disciplinary Committee before applying for a High Court order Where there is an appeal against conviction, the Council shall make such application only after the appeal has been withdrawn or disposed of by the appellate court.

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In Re Singh Kalpanath [1992] 2 SLR 639, it was held that in judicial proceedings, the rule against bias is most demanding. A judge is expected to maintain the highest standard of conduct in the exercise of his functions and have an open and impartial mind Singh Kalpanath - Facts The applicant Kalpanath was an advocate and solicitor. The disciplinary committee (DC) of the Law Society found him guilty of misconduct and asked him to show cause before a court of three judges. Singh applied for an order of certiorari to quash the DC’s findings and determination on the ground that the chairman of the DC, one CS was biased. Kalpanath alleged that CS met with his legal assistant SS twice during the currency of the DC’s hearings, and threatened or warned SS and suggested to SS that he (CS) had made up his mind about the veracity of the witness. SS was a material witness for Kalpanath in the DC proceedings. It was argued that the whole DC was tainted with CS’s bias or apparent bias. At the commencement of the application for certiorari, CS (the respondent) made two preliminary objections: (a) Kalpanath was not entitled to rely on statements made in CS’s affidavits as additional grounds in support of his case as these were new grounds which took CS by surprise; and (b) Kalpanath’s application to cross-examine CS on his affidavits. It was also suggested that Kalpanath was not entitled to subject the DC’s decision to judicial review as the matter would be considered by the court of three Judges. Held, quashing the findings of the DC: (1) No amendment to the notice of motion was required. If CS’s own admissions were capable of providing additional legal grounds to impugn his decision, Kalpanath was entitled to rely on them. There was no question of CS or his counsel being taken by surprise. (2) The nature of the disputes between CS and SS on the one hand, and between Kalpanath and CS on the other, made this an appropriate case that CS submit to cross-examination. The difference between the ‘exceptional case’ test and the ‘justice of the case’ test was not one of substance. Grave injustice might have been caused to Kalpanath if he was not allowed to test the truth of CS’s account of the conversations. The truth of SS’s account was central to Kalpanath’s primary case just as much as the truth of CS’s account was central to his defence. If upheld, the objection would result in denying to Kalpanath the natural justice which he alleged had already been denied him by CS. Not only was Kalpanath’s career at stake, but more importantly, confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS were immune from cross-examination. (3) ‘Show cause’ proceedings were different from judicial review proceedings, both with respect to the law as well as procedure. In show cause proceedings, the court went into the merits of the findings and determination of the DC on the basis of the evidence recorded by the DC. It did not hear oral evidence at all. In the latter, the court did not deal with the merits of the decision but with its legality on ordinary administrative law grounds. Bias, as an aspect of procedural impropriety, was one of the grounds. The DC’s decision was therefore subject to judicial review notwithstanding that Kalpanath might still have the right to show cause. (4) Bias may be actual, apparent or imputed. The important matter was not what Kalpanath might think about the judge but the appearance, as it presented itself to the objective observer. The court would set aside as void an award of a tribunal which was infected by the appearance of a real likelihood of bias or if a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for Kalpanath was not possible. (5) The test for bias should be referable to the contents of the bias rule. Context was important. In judicial proceedings, the rule was most demanding. A judge was expected to maintain the highest standard of conduct in the exercise of his functions. He must bring an open and impartial mind to the determination of the dispute before him and not act in any way which compromised the integrity of the judicial process. The standard

required by the chairman of the DC under the Legal Profession Act (Cap 161) was just as high, and was commensurate with the standing of that office, having regard to the statutory qualifications for holding that office and the powers of the committee. A decision-maker should not have any contact with any party to the proceedings or any of his witnesses in the absence of the other party or his counsel. (6) Kalpanth made out a case of apparent bias. An objective assessment of the evidence led to such conclusion. To a member of the public, CS’s advice given to SS at the first encounter could reasonably mean or imply that CS did not believe SS would be an independent or impartial witness because he was Kalpanath’s witness. It did not matter whether at that time CS was aware of the nature and substance of the evidence that SS would be giving. Since CS had great experience in the conduct of trials and disciplinary inquiries, it must have occurred to CS that SS would not have been called to give evidence on behalf of Kalpanath unless his evidence was favourable to the latter. Against the known background that SS was Kalpanath’s employee, CS’s advice would have engendered a reasonable suspicion that CS had formed the view that there was a possibility of SS giving untruthful evidence in favour of Kalpanath, or that SS somehow, had been persuaded to give such evidence. (7) Similarly, CS’s utterances to SS at the second meeting might give the impression to reasonable people that SS’s evidence was not being believed because of his relationship with Kalpanath and not because it was unworthy of belief on its own merits. The reference, direct or indirect, to the relationship between SS and Kalpanath during the second conversation would have reinforced the perception of the state of mind of CS at the first encounter. The fact was that CS talked to SS on both occasions on the same subject matter: SS’s testimony at the inquiry, in a context when SS was an employee of the applicant. There was thus evidence on which a reasonable person might believe that CS might or could not bring an unprejudiced mind to the disciplinary inquiry. The contents of the two conversations gave an appearance of a real likelihood of bias. (8) Although the other members of the DC filed affidavits stating that CS had not influenced or attempted to influence their decision, it would not be proper to count heads and say there was a majority of unbiased members. One cannot tell to what extent the bias of even one magistrate, especially he be a chairman, may influence the decision of the rest. One had to look at the whole picture. (9) CS participated in the proceedings and strenuously resisted Kalpanath’s application, but only because Kalpanath put his case at a level at which CS was given no choice but to defend his conduct and reputation. Kalpanath failed to prove the main charge of actual bias in the form of the threat to SS. If the motion had been based solely on this charge, it would have been dismissed. However, Kalpanath succeeded on a much less serious charge. In the circumstances, each party should pay his own costs.

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Decision maker should not have any contact with any party to the proceedings or any of his witnesses in the absence of the other party or his counsel  In Re Low Fook Cheng Patricia (A Solicitor) [1999] 2 SLR 326, the Chairman of the Committee made a personal call to the solicitor for the landlord. Court held that a finding should not be made on a fact in issue without disclosing the conversation between the Chairman and the landlord’s solicitor. It was unfair for the solicitor concerned to have been adjudged on an issue in which a material witness had been given a private statement to a member of the adjudicating tribunal without the knowledge of the advocate and solicitor concerned Facts Patricia Low Fook Cheng, a lawyer, applied to set aside a $100 penalty imposed by the Law Society for misconduct after the Inquiry Committee’s finding that she had done very little to request for an extension of time for her client to give vacant possession to the landlord. Held, setting aside the penalty: (1) The Inquiry Committee did not have sufficient evidence to form the view that Patricia Low had misconducted herself. They did not call the landlord’s solicitor to verify her assertion that she had made an oral request for extension of time and to withhold enforcement of consent judgment against her client. They also failed to disclose that the chairman had conversed with the landlord’s solicitor. It was unfair to adjudge her without her knowledge of such private statement, and the burden of proving misconduct had not been properly discharged.

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A Statement of Case must be served on the solicitor so that he knows the charges against him (r. 6 of the Legal Profession (Disciplinary Committee Proceedings) Rules) Documents to be forwarded by Secretary 6. As soon as is practicable after the appointment of a Disciplinary Committee, the Secretary shall — (a) forward to every member of the Disciplinary Committee and to the respondent a copy each

of — (i) the notice in Form 3; (ii) the complaint against the respondent; and (iii) the statement of the case specifying the charges and allegations the respondent is required to answer; and (b) forward to the solicitor for the Society or the complainant, as the case may be, a copy of the notice in Form 3.

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Shan Rajagopal [1994] 3 SLR 524, held the withdrawal of a complaint cannot affect the jurisdiction of the disciplinary committee to hear and investigate “the matter” which refers to the charges formulated by the Law Society Facts The respondent Rajagopal was an advocate and solicitor. He was instructed by one Muthuperavi to apply for the reinstatement of his Singapore permanent residence status. Rajagopal told Muthuperavi that this application was likely to be facilitated if he offered to refund the moneys he withdrew from his Central Provident Fund account before leaving Singapore. Muthuperavi then deposited $35,000 with Rajagopal on 6 May 1988. On 9 May 1988, Rajagopal withdrew the entire sum from his firm’s client account for his own personal use. On 21 November 1991, Muthuperavi instructed other solicitors to act for him. Rajagopal was requested to pay over the sum of $35,000 but he failed to do so. Muthuperavi then made a formal complaint to the Law Society. One day prior to the hearing before a disciplinary committee (DC), Rajagopal paid Muthuperavi all sums due to him and the latter withdrew his complaint and became unavailable as a witness at the hearing. As a result, the Law Society proceeded on only two out of four original charges against Rajagopal. The first charge alleged that Rajagopal breached the Legal Profession (Solicitors’ Accounts) Rules but the DC found that this charge had not been made out. The second charge alleged that Rajagopal discharged his professional duty in a grossly improper manner by applying the $35,000 deposited with him for his personal use. The DC then concluded that the second charge was proved and that cause existed for disciplinary action under s 83 of the Legal Profession Act. At the “show cause” proceedings, Rajagopal’s defence was that he had only applied the $35,000 for his personal use after he was offered the sum as a loan. Held, ordering that the respondent be struck off the roll: (1) This was not a normal case of borrowing but a borrowing from funds deposited with Rajagopal for a particular purpose. This situation required Rajagopal to exercise even greater care to ensure that his client was placed in a position to make a free and informed decision about the proposed transaction, and in particular to insist that the client take independent advice. However, Rajagopal failed to appreciate the care required of him. Such failure showed an unfitness to remain on the roll. (2) Despite the fact that Rajagopal repaid the sums outstanding, leniency was inappropriate. That Rajagopal had proposed to make repayment only on condition that Muthuperavi withdraw his complaint exacerbated his misconduct. Furthermore, what was relevant was the propriety of his conduct at the time when the act was committed and not whether the client ultimately suffered any loss. Rajagopal was ordered to be struck off the roll of advocates and solicitors.

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Report is also published, and a copy of the entire proceedings is made public and can be purchased (s. 93 the Act) Findings of Disciplinary Committee 93. —(1) After hearing and investigating any matter referred to it, a Disciplinary Committee shall record its findings in relation to the facts of the case and according to those facts shall determine — (a) that no cause of sufficient gravity for disciplinary action exists under section 83; (b) that while no cause of sufficient gravity for disciplinary action exists under that section the advocate and solicitor should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or (c) that cause of sufficient gravity for disciplinary action exists under that section. [35/2001] (2) In the event of the Disciplinary Committee making a determination under subsection (1) (b) or (c), the Committee may make an order for payment by any party of costs or of such sum as the Committee may consider a reasonable contribution towards costs. (3) A Disciplinary Committee shall carry out its work expeditiously and the Society may apply to the Chief Justice for directions to be given to the Disciplinary Committee if the Disciplinary

Committee fails to make any finding and determination within 6 months from the date of its appointment. [30/86] (4) The findings and determination of the Disciplinary Committee under this section shall be drawn up in the form of a report of which — (a) a copy shall be submitted to the Chief Justice and the Society; and (b) a copy shall on request be supplied to the advocate and solicitor concerned. (5) The findings and determination of the Disciplinary Committee shall be published by the Council in the Singapore Law Gazette or in such other media as the Council may determine which would adequately inform the public of the findings and determination. [30/86;35/2001] (6) A copy of the entire record of the proceedings of the Disciplinary Committee including its findings and determination shall be made public and copies thereof shall be made available to the members of the public upon payment of the prescribed fee. Dissatisfied Complainants – Section 97 Section 97(1) Where a Disciplinary Committee has determined – (a) that no cause of sufficient gravity for disciplinary action exists under section 83; or (b) that while no cause of sufficient gravity for disciplinary action exists under that section the advocate and solicitor should be reprimanded or ordered to pay a penalty, and the person who made the complaint, the advocate and solicitor or the Council is dissatisfied with the determination, that person, advocate and solicitor or the Council may, within 14 days of being notified of the Disciplinary Committee’s decision, apply to a Judge under this section. -

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A disappointed complainant has locus standi to challenge a decision of a prosecuting authority not to proceed with the investigation of a complaint or the initiation of a prosecution. Although the discretion of a prosecuting authority is broad, it is subject to review Each case has to be considered on – i. the issues of irrationality or procedural irregularity; ii. with due regard to the powers, functions and procedures of the body concerned; and iii. the manner in which it dealt with the complaint or application in issue See R v Bar Council ex parte Percival (DC) [1990] 3 WLR 323

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Order to Show Cause:

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Law Society will issue an ex parte Originating Summons heard before a single Judge in chambers asking for an order that the solicitor show cause why he should not be struck off the roll. Suspended or censured (s. 98 the Act) (“the order to show cause”)

Section 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. -

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Procedure: OS ex parte The application to make absolute and the showing of cause shall be heard by a court of 3 judges of the Supreme Courts – ss. (7) No appeal allowed – ss. (7) Court of Three Judges:  A copy of the order and affidavits upon which the order was made must be served on the solicitor

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An application to make a final order pursuant to an order to show cause must be made by summons in the same proceedings, and the summons will be heard by a Court of Three Judges of the Supreme Court (s. 98(7) the Act) 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. [30/86] (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 a final order pursuant to an order to show cause must be made by summons in the same proceedings and, unless the Judge otherwise directs, there must be at least 8 clear days between the service of the summons and the day named therein for the hearing. [41/93] (6) Any final order, 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 a final order 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. [15/89;41/93] (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. [30/86] (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.

Variations to the Procedure: • s. 83(2)(a) 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; •

if he is convicted of fraud, criminal breach of trust and so on, the procedure is slightly different o s. 94(1), 2 stages are removed Society to apply to court if cause of sufficient gravity exists 94. —(1) If the determination of the Disciplinary Committee under section 93 is that cause of sufficient gravity for disciplinary action exists under section 83, the Society shall without further direction or directions proceed to make an application in accordance with section 98. Findings of Disciplinary Committee 93. —(1) After hearing and investigating any matter referred to it, a Disciplinary Committee shall record its findings in relation to the facts of the case and according to those facts shall determine — (a) that no cause of sufficient gravity for disciplinary action exists under section 83; (b) that while no cause of sufficient gravity for disciplinary action exists under that section the advocate and solicitor should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or (c) that cause of sufficient gravity for disciplinary action exists under that section.

[35/2001] (2) In the event of the Disciplinary Committee making a determination under subsection (1) (b) or (c), the Committee may make an order for payment by any party of costs or of such sum as the Committee may consider a reasonable contribution towards costs. (3) A Disciplinary Committee shall carry out its work expeditiously and the Society may apply to the Chief Justice for directions to be given to the Disciplinary Committee if the Disciplinary Committee fails to make any finding and determination within 6 months from the date of its appointment. [30/86] (4) The findings and determination of the Disciplinary Committee under this section shall be drawn up in the form of a report of which — (a) a copy shall be submitted to the Chief Justice and the Society; and (b) a copy shall on request be supplied to the advocate and solicitor concerned. (5) The findings and determination of the Disciplinary Committee shall be published by the Council in the Singapore Law Gazette or in such other media as the Council may determine which would adequately inform the public of the findings and determination. [30/86;35/2001] (6) A copy of the entire record of the proceedings of the Disciplinary Committee including its findings and determination shall be made public and copies thereof shall be made available to the members of the public upon payment of the prescribed fee. Reinstatement to the Bar: • s.102 of the Act Replacement on roll of solicitor who has been struck off 102. —(1) The court may, if it thinks fit, at any time order the Registrar to replace on the roll the name of a solicitor whose name has been removed from, or struck off, the roll. (2) Any application that the name of a solicitor be replaced on the roll shall be by originating summons, supported by affidavit, before a court of 3 Judges of the Supreme Court of whom the Chief Justice shall be one. [41/93] (3) The originating summons shall be served on the Society which shall — (a) appear at the hearing of the application; and (b) place before the court a report which shall include — (i) copies of the record of any proceedings as the result of which the name of the solicitor was removed from or struck off the roll; and (ii) a statement of any facts which have occurred since the name of the solicitor was removed from or struck off the roll and which in the opinion of the Council or any member of the Councils are relevant to be considered or to be investigated in connection with the application.

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an application for reinstatement to the Bar requires an applicant to show that he was of such a reformed character that he could be relied upon to discharge the professional duties of an advocate and solicitor with honour and integrity

Re Gnaguru s/o Thamboo Mylvaganam [2004] SGHC 180: apart from his own affidavits, there was no real evidence to substantiate his claims of rehabilitation. In the absence of any evidence of his trustworthiness and good character, which was the essential concern here, his bare assertions could not be accepted Gnaguru - Facts The applicant was struck off the roll on 31 August 1994 after his conviction for an offence implying a defect of character which made him unfit for the legal profession. He had arranged with a doctor to provide medical certificates for his clients who wished to absent themselves from court, even when they were not ill. He was subsequently convicted for abetting one of his clients in intentionally omitting to attend at the Subordinate Courts, for which he was struck off the roll. After a lapse of nine years and 11 months, he filed the present motion for reinstatement. Held, dismissing the application: (1) Given that the applicant had been kept off the roll for almost ten years, the present application was not premature: at [10]. (2) The applicant bore the burden of proving that he was now of such a reformed character that he was fit to be re-admitted to the Bar. Apart from his own affidavits, there was no real evidence to substantiate his claims

of rehabilitation. In the absence of any evidence of his trustworthiness and good character, which was the essential concern here, his bare assertions could not be accepted: at [18]-[19]. 18 However, we had to balance this against the fact that the offence committed by the applicant clearly involved a dishonest and deliberate obstruction of the administration of justice. We accepted that the applicant had already paid a high price for his misdeeds, and, in principle, sentences of exclusion from the legal profession need not be exclusive forever: Re Chan Chow Wang [1982–1983] SLR 413. Nevertheless, the applicant bore the burden of proving that he was now of such a reformed character that he could be relied upon to discharge the professional duties of an advocate and solicitor with honour and integrity. 19 In this regard, the applicant’s case was woefully inadequate. Apart from his own affidavits, there was no real evidence to substantiate his claims of rehabilitation. The letters of recommendation from other members of the Bar, which we considered at length, merely spoke of the applicant’s deep interest in the law and his friendly and affable disposition. We found it telling that not a single letter attested to his trustworthiness and good character, which was our essential concern here. The letters from the Red Cross also added little, if any, value to his application. In the absence of any substantive evidence, we could not accept the applicant’s bare assertion that his character had so changed that he was now fit to be re-admitted to the Bar. •

Since the maximum period of suspension if 5 years, a significantly longer period than 5 years is required to have elapsed before an application to be restored will be entertained

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An advocate and solicitor who has been struck off should not end up in substantially the same position as, or be better off than one who has merely been suspended from practice for the same period, so as to adequately reflect the difference in gravity between a striking off and a suspension order: Nirmal Singh s/o Fauja Singh [2001] 3 SLR 608

Facts Following the applicant’s conviction on three charges of corruption and one charge of criminal breach of trust, he was struck off the roll of advocates and solicitors on 1 December 1995. About five years and four months later since his striking off, the applicant applied under s 102 of the Legal Profession Act (Cap 161, 2000 Ed) (“LPA”) to have that his name restored to the roll of advocates and solicitors. It was highlighted to the court that after his release from prison, the applicant was actively engaged in various charity works, was gainfully employed and was now fully repentant and rehabilitated. Held, dismissing the application: (1) An advocate and solicitor who had been struck off the roll should not end up in substantially the same position as, or better off than, one who had merely been suspended from practice for the full period of five years. Although the court was not disposed to lay down any fixed minimum time frame for bringing an application under s 102 of the LPA, a significantly longer period than five years should have elapsed before any such application would be considered. (2) Whilst the applicant had ceased legal practice long before the order of striking off was made, the cessation was far from voluntary and more a result of the police investigations against him. Thus, the period before the striking off was made could hardly be taken into account for the purpose of deciding whether or not sufficient time had elapsed for the present application. (3) The nature of the offences, for which the applicant was struck off, was also of such a degree of severity as not to warrant a restoration of the applicant to the roll at this point in time. In exercising its powers under s 102 of the LPA, the court must ensure the protection of the interests of the public and the profession as a whole over the interests of the applicant. -

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The application to make absolute and the showing of cause shall be heard by a court of3 judge of the Supreme Courts and there shall be no appeal. [To note that there is no appeal to the Privy Council.] Replacement on the roll of a Solicitor who has been struck off before 3 JUDGES of the Supreme Court. Test for re-admitting applicants to the bar?: In re-admitting applicants to the bar, the Court has a duty to litigants and to the legal profession to ensure that such persons are of the highest integrity and honour. i. The Court must also be satisfied, in the public interest, that the applicant is not likely to repeat these offences if he is re-admitted. ii. The onus is on the applicant to show that – Chan Chow Wang v. Malaysian Bar [1986] 2 MLJ Pg 159 (1) (A) There has been such a change in the character as to make him a fit and proper person to resume practice at the Bar.

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(2) (B) He is truly penitent. (3) (C) He has made restitution. (4) A significantly longer period than 5 years is required to have elapsed before an Application to be restored will be entertained, given that the maximum period of a court ordered suspension is now 5 years. An Advocate & Solicitor who has been struck off should not end up in substantially the same position as, or be better off than one who has merely been suspended from practice for his full period of 5 years so as to adequately reflect the difference in gravity between a striking-off and a suspension order Cases usus involve crim breach of trust Nirmal Singh v Law Society [2001] 3 SLR 608 Showed favours to high officials to get matters done Held: Since the maximum number of years for suspension is 5 years, thus, more than 5 years must have elapsed before an application to be re-admitted to the bar be entertained. See case – sigf longer period than 5 yrs red bfore application to be restored entertained given tt max perio of suspension is 5 yrs.

Re Gnaguru s/o Thamboo Mylvaganam [2004] SGHC 180 (1) Given that the applicant had been kept off the roll for almost ten years, the present application was not premature (2) The applicant bore the burden of proving that he was now of such a reformed character that he was fit to be re-admitted to the Bar. Apart from his own affidavits, there was no real evidence to substantiate his claims of rehabilitation. In the absence of any evidence of his trustworthiness and good character, which was essential concern here, his bare assertions culd not be accepted. Exp Percival (D.C.) [1990] 3 WLR pg 323. - A disappointed complainant has locus standi to challenge a decision of a prosecuting authority not to proceed with the investigation of a complaint or the initiation of a prosecution. Although, the discretion of a prosecuting authority is broad, it is subject to review, but each case has to be considered on the issues of irrationality or procedural irregularity, with due regard to the powers, functions and procedures of the body concerned, and the manner in which it deal with complaint or application in issue: Reg v. Bar Council,  Signs of cases where complainant mau disagree with how law soc proceeds – may take prerogative writ and ask for partr charge. Not yet such cases but may come in Amendments to the Legal Profession Act in 1993 Relating to Disciplinary Proceedings: • s. 66, s. 82

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s. 82A was inserted to provide a new procedure for the disciplinary proceedings of legal officers and non-practising solicitors Proceedings of Council and Inquiry Committee to be confidential 66. —(1) Except insofar as may be necessary for the purpose of giving effect to any resolutions or decisions of the Council and any Inquiry Committee, confidentiality shall be maintained in all proceedings conducted by the Council, its staff and the Inquiry Committee. [15/89] (2) Notwithstanding subsection (1), the Chief Justice or the Attorney-General may require the Council to disclose to him any matter or information relating to any complaint of misconduct or disciplinary action against any advocate and solicitor. Jurisdiction of Supreme Court over solicitors and legal officers 82. —(1) Any person duly admitted as an advocate and solicitor and any legal officer shall be an officer of the Supreme Court. [41/93] (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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Disciplinary proceedings against legal officers and non-practising solicitors 82A. —(1) This Part, with the exception of this section and sections 82, 90, 91, 98 to 102, 104, 105 and 106, shall not apply to any legal officer or any advocate and solicitor who does not at the time of the misconduct have in force a practising certificate (referred to in this section as a non-practising solicitor). [41/93] (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) (a), (b), (c), (d), (e), (f), (h), (i), (k), ( l) or (m) of the Bankruptcy Act (Cap. 20). [15/95] (4) No application for an order to show cause under this section shall be made unless leave has been granted by the Chief Justice for an investigation to be made into the complaint of misconduct against the legal officer or non-practising solicitor concerned. (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 nonpractising solicitor. (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. (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. (8) A copy of the report shall be supplied to the legal officer or non-practising solicitor concerned, and to the Attorney-General if the report relates to a legal officer. (9) Where the Disciplinary Committee finds that no cause of sufficient gravity for disciplinary action exists under this section against the legal officer or non-practising solicitor concerned, the Chief Justice shall dismiss the complaint. (10) Where the Disciplinary Committee finds that cause of sufficient gravity for disciplinary action exists under this section against the legal officer or non-practising solicitor concerned, the Chief Justice may appoint an advocate and solicitor or a legal officer to apply by summons in the same proceedings for an order that the legal officer or the non-practising solicitor concerned be struck off the roll, prohibited from applying for a practising certificate, censured or otherwise punished. (11) Section 98 shall apply, with the necessary modifications, to any application under subsection (10). (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 a 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 other order as it thinks fit. (13) The costs of and incidental to all proceedings under this section shall be in the discretion of the Judge or of the court before whom the hearing has taken place. (14) 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 in the absence of any rule or rules dealing with any point of procedure or practice, the Rules of Court (Cap. 322, R 5) may be followed as nearly as the circumstances permit. (15) For the avoidance of doubt, nothing in this section shall prevent any legal officer from being subject to disciplinary action by the Legal Service Commission for any act or omission which constitutes a disciplinary offence under this section. Law Society will have no jurisdiction over such persons

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S. 82A provides that an application to show cause may be made with the leave of the Chief Justice

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S. 83 (Power to strike off roll or suspend or censure) was amended to empower the Supreme Court to suspend an advocate and solicitor for up to 5 years S. 85(1) was inserted by retaining the procedure for a complaint of the conduct of an advocate and solicitor to be made to the Law Society S. 85(4) was inserted to enable the Council to first inquire into complaints against an advocate and solicitor which are more serious in nature and to defer the inquiry into other less serious complaints against him Complaints against advocates and solicitors 85. —(1) Any complaint of the conduct of an advocate and solicitor shall in the first place be made to the Society and the Council shall refer the complaint to the Chairman of the Inquiry Panel. (4) Notwithstanding subsections (1), (2) and (3), where 2 or more complaints or information touching upon the conduct of an advocate and solicitor have been received by the Council, including any complaint which had been referred to a Disciplinary Committee under section 89, the Council may with the leave of the court refer to the Chairman of the Inquiry Panel one or more complaints or information which in its opinion are more serious in nature first and defer the referral of the remaining complaints or information. • S. 86 (Inquiry)

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S. 87 allows the Council to prefer a charge against an advocate and solicitor as it thinks fit • S. 88 was amended to require the Council to publish a notice in the Gazette • S. 89 was re-enacted to enable the Council to apply to the Chief Justice to appoint a Disciplinary Committee Council’s consideration of report 87. —(1) The Council shall consider the report of the Inquiry Committee and according to the circumstances of the case shall, within one month of the receipt of the report, determine — (a) that a formal investigation is not necessary; (b) that no cause of sufficient gravity exists for a formal investigation but that the advocate and solicitor should be ordered to pay a penalty under section 88; (c) that there should be a formal investigation by a Disciplinary Committee; or (d) that the matter be adjourned for consideration or be referred back to the Inquiry Committee for reconsideration or a further report. [41/93] (2) If the Inquiry Committee in its report recommends — (a) that there should be a formal investigation, then the Council shall determine accordingly under subsection (1); or (b) that a formal investigation by a Disciplinary Committee is not necessary, the Council may, if it disagrees with the recommendation, request the Chief Justice to appoint a Disciplinary Committee. (3) Where the report of the Inquiry Committee discloses the commission of — (a) any other misconduct by the advocate and solicitor which has not been referred to or inquired into by the Inquiry Committee, the Council shall, if it determines that there should be a formal investigation of such misconduct, have power to prefer such charge against the advocate and solicitor as it thinks fit with respect to that misconduct; or (b) any offence involving fraud or dishonesty by the advocate and solicitor, the Council shall immediately refer the matter to the police for investigation. [41/93] (4) The Council shall inform the advocate and solicitor and the person who made the complaint of the manner in which it has determined the complaint, and in the event of the determination being that a formal investigation is unnecessary, the Council shall on the request of the person furnish him with its reasons in writing. [41/93] Council’s power to order penalty 88. —(1) If the Council determines under section 87 that no cause of sufficient gravity exists for a formal investigation but that the advocate and solicitor should be ordered to pay a penalty, it may order the advocate and solicitor to pay a penalty of not more than $5,000. (2) Section 95 shall apply to any penalty ordered to be paid under subsection (1). (3) Before the Council makes an order for the payment of a penalty under this section, it shall notify the advocate and solicitor concerned of its intention to do so and give him a reasonable opportunity to be heard by the Council.

(4) Where — (a) no application is made to set aside an order for the payment of a penalty under subsection (1) or if the order is affirmed or varied by the court under section 95 (3) (a); or (b) an advocate and solicitor has been reprimanded by the Council under section 94 (3) (a), the Council shall, at the expense of the advocate and solicitor, publish in the Gazette a notice of the order or of the reprimand, as the case may be. [41/93;35/2001] (5) Any notice under subsection (4) shall contain the name of the advocate and solicitor, the nature of the misconduct committed by him and the penalty payable by him or the reprimand, as the case may be. [41/93] (6) Where an application is made to a Judge by any person under section 97 (1), the Council shall not publish the notice under subsection (4) until the application has been withdrawn or deemed to have been withdrawn or disposed of by the Judge under section 97 (3). [41/93] Application to appoint Disciplinary Committee 89. —(1) Where the Council determines under section 87 that there should be a formal investigation, the Council shall immediately apply to the Chief Justice to appoint a Disciplinary Committee which shall hear and investigate the matter. [30/86;41/93] (2) Notwithstanding subsection (1), where 2 or more matters are pending against an advocate and solicitor, the Council may apply for one or more matters which in its opinion are more serious in nature to be heard and investigated first and defer the hearing and investigation of the other matters. [30/86;41/93] (3) Where a Disciplinary Committee has been appointed to hear and investigate any matter against an advocate and solicitor under subsection (1) and before the commencement of the hearing of and investigation into that matter there is any other matter pending against the advocate and solicitor, the Chief Justice may, on the application of the Council, direct that Disciplinary Committee to hear and investigate the other matter or matters. [30/86;41/93] (4) Where, in the course of its investigation of any matter against an advocate and solicitor referred to it under subsection (1) or (3), a Disciplinary Committee receives information touching on or evidence of the conduct of the advocate and solicitor which may give rise to proceedings under this Part, the Disciplinary Committee may, on the application of the Council, prefer such additional charge against the advocate and solicitor as it thinks fit with respect to such misconduct and, after giving notice to him, hear and investigate such charge and section 93 shall apply to such charge accordingly. • •

S. 94 was amended to empower the Council to reprimand advocate and solicitor New s. 94A was inserted to require the Law Society to apply forthwith to the High Court for an order Society to apply to court if cause of sufficient gravity exists 94. —(1) If the determination of the Disciplinary Committee under section 93 is that cause of sufficient gravity for disciplinary action exists under section 83, the Society shall without further direction or directions proceed to make an application in accordance with section 98. (2) If the determination of the Disciplinary Committee under section 93 is that no cause of sufficient gravity for disciplinary action exists under section 83, it shall not be necessary for the Society to take any further action in the matter unless so directed by the court. (3) If the determination of the Disciplinary Committee under section 93 is that, while no cause of sufficient gravity for disciplinary action exists under section 83, the advocate and solicitor should be reprimanded or ordered to pay a penalty, the Council shall — (a) if it agrees with the determination, reprimand the advocate and solicitor or order him to pay a penalty of not more than $10,000, as the case may be; or (b) if it disagrees with the determination, without further direction or directions proceed to make an application in accordance with section 98. [41/93;35/2001] 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. [41/93] (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.

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S. 97 was amended to enable an advocate and solicitor to appeal against the decision of a Disciplinary Committee

S. 98 was amended to reduce the previous two-stage show cause proceedings against an advocate and solicitor to the present one-stage process, made by summons in the same proceedings as the application to make the order Procedure for complainant dissatisfied with Disciplinary Committee’s decision 97. —(1) Where a Disciplinary Committee has determined — (a) that no cause of sufficient gravity for disciplinary action exists under section 83; or (b) that while no cause of sufficient gravity for disciplinary action exists under that section the advocate and solicitor should be reprimanded or ordered to pay a penalty, and the person who made the complaint, the advocate and solicitor or the Council is dissatisfied with the determination, that person, advocate and solicitor or the Council may, within 14 days of being notified of the Disciplinary Committee’s decision, apply to a Judge under this section. (2) Such an application shall be made by originating summons and shall be served on the Society and the secretary of the Disciplinary Committee who shall thereupon file in court the record and report of the hearing and investigation by the Disciplinary Committee. (3) Upon the hearing of the application, the Judge, after hearing the applicant and the Disciplinary Committee and, if it desires to be heard, the Society, may make an order — (a) confirming the report of the Disciplinary Committee; (b) directing the applicant or the Council to make an application under section 98; or (c) directing the advocate and solicitor concerned under section 98 (1) to show cause, and such order for the payment of costs as may be just. [30/86] (4) If the Judge makes an order under subsection (3) (b) or (c) on the application of a person other than the Council or advocate and solicitor, the applicant shall have the conduct of proceedings under section 98 and any such proceedings shall be brought in the name of the applicant. [30/86;41/93] 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. [30/86] (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 a final order pursuant to an order to show cause must be made by summons in the same proceedings and, unless the Judge otherwise directs, there must be at least 8 clear days between the service of the summons and the day named therein for the hearing. [41/93] (6) Any final order, 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 a final order 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. [15/89;41/93] (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. [30/86] (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. Legal Profession (Amendment) Act 1996: • introduced new Second Schedule relating to powers of the Council to take action against solicitors who provide inadequate professional services Note application to JLVs and foreign firms New Power of Sanction of the Disciplinary Committee, the Council’s Power to Order a Penalty and the Publication of All Findings and Determinations of Disciplinary Committees 

Disciplinary (“DC”) to also have the power to recommend that the Council impose a financial penalty not exceeding $10,000 against a solicitor, apart from the Committee’s existing power to order the Council to reprimand a solicitor for his misconduct: s. 94 Society to apply to court if cause of sufficient gravity exists 94. —(1) If the determination of the Disciplinary Committee under section 93 is that cause of sufficient gravity for disciplinary action exists under section 83, the Society shall without further direction or directions proceed to make an application in accordance with section 98. (2) If the determination of the Disciplinary Committee under section 93 is that no cause of sufficient gravity for disciplinary action exists under section 83, it shall not be necessary for the Society to take any further action in the matter unless so directed by the court. (3) If the determination of the Disciplinary Committee under section 93 is that, while no cause of sufficient gravity for disciplinary action exists under section 83, the advocate and solicitor should be reprimanded or ordered to pay a penalty, the Council shall — (a) if it agrees with the determination, reprimand the advocate and solicitor or order him to pay a penalty of not more than $10,000, as the case may be; or (b) if it disagrees with the determination, without further direction or directions proceed to make an application in accordance with section 98.

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Prior to the amendment, the Council only had the power to order a penalty not exceeding $5,000 on a member for misconduct Where an IC is of the view that the appropriate penalty should be a substantial financial penalty exceeding $5,000, it would make a recommendation for the complaint to be referred to a DC for a formal investigation Penalties ordered to be paid by a solicitor to be paid to the Law Society instead of the Consolidated Fund

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 4.

MISCELLANEOUS

4.1

Adverse Orders (Section 101)

Section 101 (1) The Society shall give the Registrar notice of every order made under this Part that is adverse to an advocate and solicitor, and the Registrar shall cause a note of the effect of that order to be entered on the roll against the name of the advocate and solicitor concerned. (2) An order as to costs only need not be so entered on the roll. 4.2

No action in absence of bad faith – section 106

Section 106 No action or proceeding shall lie against the Attorney-General, the Society, the Council, a Review Committee, a Disciplinary Committee or an Inquiry Committee or any member thereof for any act or thing done under this Act unless it is proved to the court that the act or thing was done in bad faith or with malice. 4.3 • •

Cannot take action against a tribunal/ authority unless with bad faith or malice Statistics Bulk of the complaints: Clients against lawyers Number of complaints –

Client vs. Lawyers… Year 1999 2000 2001 2002

Number of complaints 44 21 84 38 (up to 31 August)

Update 2005 table 1 JANUARY 2005 - 31 DECEMBER 2005 (89 cases) 1)Council > Lawyers : 11 } 2)Clients > Lawyers : 63 } 89 cases 3)Lawyer > Lawyer : 15 } INQUIRY COMMITTEE REPORT (89 cases) 8 referred to Disciplinary Committee 14 cases - Penalty 67 cases - Dismissed 1 JANUARY 2006 - 31 AUGUST 2006 ( 45 cases) 1)Council > Lawyers : 4 }} 2)Clients > Lawyers : 36 } 45 cases 3)Lawyer > Lawyer : 5 } INQUIRY COMMITTEE REPORT (45 cases) 2 referred to Disciplinary Committee 3 cases – Penalty 8 cases – Dismissed 32 complaints still pending

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See ahmad khalis case for reference to junior lawyer English case Case study – write determination fr pov committee based on evidence given 27 september distributed whether opinion or determination – do within 1500 words including authorities. Go straigtht to the point. 30 percent of marks!!!!!