Lec 9 Publicity Rules

9 Publicity Rules Outline: 1. Introduction 2. To whom these Rules apply 3. Definition of Publicity 4. General Principles a. Responsibility of Compliance 5. Publicity within Singapore 6. Client/ Third Party Publicity 7. Rule against touting 8. Publicity outside Singapore 9. Cases 0. • • • • •

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Introduction to the Legal Profession (Publicity) Rules 1998 Advertising – commercial side of practising law Rules undergone considerable change In the past – considered unethical and matter for strict discipline but thinking has now turned around and adv and sol recog tt advertising fills gap in potential client’s informational disadv and has bearing on access to justice Arg against – o Commercialism shld be minimalised in honourable profession o Dignity shld be preserved and not undermined by inapprop advert Arg for o Need to ensure cometitiveness o Access to quality and prices of services provided o Encourage standardization of legal services and now alow ineff adv and sol to hide behind banner of individualised justice Background: o Date of operation / commencement = 1 December 1998. The 1998 rules came into operation in 1 Dec 1998, revoking the old 1996 Publicity Rules  Note rule 6 and rule 9 in particular  See law soc website – publicity rules with amended provisions there o 1998 Rules represent 2nd amendment to the Rules since first enactment in 1993:

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1st amended in 1996  Most Recent Amendment – Rule 9 wef 1 September 2001 (Liberalisation on advertising) Rule divided into 2 parts: o Publicity within Singapore (Part III) o Publicity outside Singapore (Part IV) Recently, council of Law Society conducted a comprehensive review of these Rules. The introduction of “law corporation” from 1 Oct 2001 necessitated amendment to these Rules.

3. REVIEW OF THE PUBLICITY AND THE PROFESSIONAL CONDUCT RULES IN VIEW OF THE IMPACT OF INFORMATION TECHNOLOGY Rules 6 and 9 of the Publicity Rules amendment of Rules 6 and 9 of the Publicity Rules Responsibilities for publicity within Singapore 6. —(1) In publicising his practice or the practice of his law firm or a law corporation of which he is a director or an employee within Singapore, an advocate and solicitor shall ensure that — (a) any claim to expertise or specialisation can be justified; (b) the publicity does not make any direct or indirect mention — (i) of past cases in which or clients for whom the advocate and solicitor, his law firm or the law corporation or any member thereof had acted where the provision of such information will involve a breach of confidentiality owed to any client or former client; or (ii) of the success rate of the advocate and solicitor, his law firm or the law corporation or any member thereof; (c) the publicity does not make any comparison or criticism in relation to the fees charged, or the quality of the services provided, by any other advocate and solicitor or law firm or law corporation; and

Professional Responsibility (8) – Publicity Rules (d) where an advocate and solicitor who was practising in the law firm or law corporation has been appointed to the judiciary, the publicity shall not make any reference to his appointment during the tenure of his office, except that nothing in this sub-paragraph shall be construed as prohibiting the inclusion of his name in the publicity where his name appears as the name of the law firm or law corporation or forms part thereof. (2) For the purposes of paragraph (1) (a), the following factors will be taken into account in justifying any claim to expertise or specialisation: (a) academic qualifications; (b) experience; (c) proportion of working time involved; (d) level of success achieved; (e) complexity of law and practice; (f) significance of the matters involving the advocate and solicitor or his law firm or a law corporation of which he is a director or an employee; (g) assessment by peers; and (h) such other matters as the Council may determine to be relevant. (3) Nothing in these Rules shall be interpreted as permitting the doing of anything by an advocate and solicitor, a law corporation, or a director or an employee of a law corporation, which may reasonably be regarded as touting. Third party publicity 9. Subject to the Act and these Rules — (a) an advocate and solicitor may allow his practice or the practice of his law firm; or (b) a law corporation or a director or an employee of a law corporation may allow the practice of the law corporation, to be publicised in or in conjunction with the publicity of any third party, whether or not the party is a client of the advocate and solicitor, law firm or law corporation. introduction of Rules 11A and 11B to the Professional Conduct Rules Touting and referrals 11A. —(1) An advocate and solicitor, a law firm or a law corporation shall not tout for business or do anything which is likely to lead to the reasonable inference that it is done for the purpose of touting. (2) Without prejudice to the generality of paragraph (1), where there is reason to believe that a client is referred to an advocate and solicitor, a law firm or a law corporation by a third party, the advocate and solicitor, law firm or law corporation, as the case may be, shall — (a) maintain the independence and integrity of the profession and not permit the referror to undermine the professional independence of the advocate and solicitor, law firm or law corporation; (b) not reward the referror by the payment of commission or any other form of consideration; (c) not allow the referral in any way to affect the advice given to such client; (d) advise the clients impartially and independently and ensure that the wish to avoid offending the referror does not in any way affect the advice given to such clients; (e) ensure that the referror does not in any way influence any decision taken in relation to the nature, style or extent of the practice of the advocate and solicitor, law firm or law corporation; and (f) communicate directly with the client to obtain or confirm instructions in the process of providing advice and at all appropriate stages of the transaction. Agreement for referrals 11B. —(1) In addition to rule 11A, when an advocate and solicitor, a law firm or a law corporation enters into agreements for referrals of conveyancing services, the advocate and solicitor, law firm or law corporation, as the case may be, shall ensure that the agreement is made in writing and contains the following terms: (a) the referror undertakes in such an agreement to comply with these Rules and the Legal Profession (Publicity) Rules (R 13); (b) the advocate and solicitor, law firm or law corporation shall be entitled to terminate the agreement forthwith if there is reason to believe that the referror is in breach of any of the terms of the agreement; (c) any publicity of the referror (whether written or otherwise), which makes reference to any service that may be provided by the advocate and solicitor, law firm or law corporation, must not suggest any of the following: (i) that the conveyancing service is free; (ii) that different charges for the conveyancing services would be made according to whether or not the client instructs the particular advocate and solicitor, law firm or law corporation; or (iii) that the availability or price of other services offered by the referror or any party related to the referror are conditional on the client instructing the advocate and solicitor, law firm or law corporation;

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and (d) the referror must not do anything to impair the right of the client not to appoint the advocate and solicitor, law firm or law corporation or in any way influence the right of the client to appoint the advocate and solicitor, law firm or law corporation of his choice. (2) The advocate and solicitor, law firm or law corporation, as the case may be, must forthwith terminate the agreement if the referror is in breach of any term referred to in paragraph (1) or if there is reason to believe that the advocate and solicitor, law firm or law corporation is in breach of such term. (3) Where the advocate and solicitor, law firm or law corporation has terminated an agreement under paragraph (2), the advocate and solicitor, law firm or law corporation, as the case may be, may continue to act in matters the advocate and solicitor, law firm or law corporation was instructed prior to the termination but should not accept any further referrals from the referror. Guidance Note on Ethics and IT published in this issue of the Law Gazette Amended Rule 9 of the Publicity Rules allows an advocate and solicitor or law practice to participate in any third party or client publicity Only caveat is found in Rules 6 and 7 of the Publicity Rules: • Established rule of not publicizing the practice in a false or misleading manner or to bring the legal profession into disrepute and the power of the Council to determine that the publicity is undesirable still stands (see Rule 7(1) of the Publicity Rules) • Provision in Rule 6 of the Publicity Rules that an advocate and solicitor not all himself or the law practice as an expert or specialist in a field unless certain conditions apply stands as well (see Rule 6(2) of the Publicity Rules) New Rule 6(3) of the Publicity Rules states that ‘nothing in these Rules shall be interpreted as permitting the doing of anything … that … may reasonably be regarded as touting’ 4. RULES AGAINST TOUTING AND RULES ON REFERRALS what amounts to touting as there is no definition of the term in the Rules if the arrangement cannot satisfy the criteria for referral of work set out in the new Rules 11A and 11B of the Professional Conduct Rules, it could lead to the inference that the third party was used for the purpose of touting s. 83(2) of the Legal Profession Act sets out specific offences of misconduct in s. 83(2)(d), (e), (f) and (g) that relate to touting 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; (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor; (c) has been adjudicated bankrupt and has been guilty of any of the acts or omissions mentioned in section 124 (5) (a), (b), (c), (d), (e), (f), (h), (i), (k), ( l) or (m) of the Bankruptcy Act (Cap. 20); (d) has tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself or any other advocate and solicitor; (e) has, directly or indirectly, procured or attempted to procure the employment of himself or any advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given; (f) has accepted employment in any legal business through a person who has been proclaimed a tout under any written law relating thereto; (g) allows any clerk or other unauthorised person to undertake or carry on legal business in his name, that other person not being under such direct and immediate control of his principal as to ensure that he does not act without proper supervision; (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; (i) carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or is in any way incompatible with it, or is employed in any such trade, business or calling; (j) has contravened any of the provisions of this Act in relation thereto if such contravention warrants disciplinary action; or (k) has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner by whatever name called in any other country.

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distinction between a legitimate referral agreement between a third party and a law practice to refer work as opposed to an attempt to tout for work: new Rules 11A and 11B of Professional Conduct Rules even if the referror produces a letter of authority on the client’s behalf, the practitioner has a duty under Rule 23 of the Professional Conduct Rules to verify the authority of the agent to give instructions Authority of client’s agent 23. An advocate and solicitor shall ensure that an agent giving instructions on behalf of a client has the required authority to do so and, in the absence of evidence of such authority, the advocate and solicitor shall, within a reasonable time thereof, confirm the instructions with the client. •

NB: Unless otherwise stated, all Rules set out herein refer to provisions in the Publicity Rules

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To WHOM these Rules Apply: applicability of rules To every advocate & solicitor – Rule 3

Rule 3 These Rules shall apply to every advocate and solicitor, whether he is practising as a principal in private practice or in partnership or association with, or in the employment of, another advocate and solicitor or in a law corporation. •

Every advocate & solicitor may publicise his practice in accordance with the Publicity Rules – Rule 4 Rule 4 An advocate and solicitor may, subject to these Rules, publicise his practice or the practice of his law firm or a law corporation of which he is a director or an employee, or allow the employees of the law corporation or agents to do so.

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Definition of Publicity (Rule 2) Law firm – sole proprietorship/partnership/any other form of legal entity Any kind of advertisement o Eg: TV, Radio, Internet, VCDs Not necessarily on a corporation/ firm basis

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Rule 2 "Publicity" means any form of advertisement and includes any advertisement — (a) printed in any medium for the communication of information; (b) appearing in, communicated through or retrievable from, any mass medium, electronic or otherwise; or (c) contained in any medium for communication produced or for use by a firm, and its derivatives, and “publicise”, “publicised” and “publicising” shall be construed accordingly. General principles rule 4 – general rule rule 5 – general resp of lawyer

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not only for indiv publicity but tt of firm resp to rectify/withdrawal/prevent recurrence non delegable

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Responsibility of Compliance General responsibility – Rule 5(1), (4), (5) o Even where lawyer assigned to, or contracted with third party (agent) to advertise, the responsibility is with the lawyer as an individual (R 5(1))

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Cannot delegate responsibility, even though delegated work of publicising, and even if that ‘other person’ is also a lawyer (R 5(4)) Cannot use Law Society’s symbol to publicise (R 5(5))

Rule 5(1) It shall be the responsibility of every advocate and solicitor to ensure that any publicity relating to his practice or the practice of his law firm or a law corporation of which he is a director or an employee complies with these Rules, whether such publicity is conducted by him or by any other person on his behalf or on behalf of his law firm or the law corporation. Rule 5(4) The responsibility of an advocate and solicitor under this rule shall not be capable of being delegated to any other person, whether or not that other person is also an advocate and solicitor. Rule 5(5) No publicity relating to the practice of any advocate and solicitor or law firm or law corporation shall make use of the armorial bearings of the Law Society. •

*What if the lawyer knows that publicity is in breach of the rules? o Rectify or withdraw advertisement in breach, and prevent reoccurrence – Rule 5(2) o Responsibility of any lawyer coming into awareness of the fact of a breach Rule 5(2) Where an advocate and solicitor becomes aware of any impropriety in any publicity relating to his practice or the practice of his law firm or a law corporation of which he is a director or an employee, it shall be his responsibility to use his best endeavour to procure the rectification or withdrawal of the publicity, and to prevent its recurrence.

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*Improper publicity? o After due inquiry, Council for the Law Society cannot refer to a disciplinary enquiry o Council can order lawyer/ firm to alter, withdraw, remove, or discontinue publicity – Rule 5(3) Rule 5(3) Where it appears to the Council that the publicity relating to the practice of any advocate and solicitor or law firm or law corporation is contrary to any of the provisions of these Rules, the Council may, after making due inquiry into the matter, order the advocate and solicitor or law firm or law corporation to alter, withdraw, remove or discontinue the publicity or cause the same to be altered, withdrawn, removed or discontinued.

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See also Rule 7(1)(c) below – Law Society with power to stop publicity if the manner of publicity is found undesirable (not referring to content) Whether ill-befitting of the legal profession? Publicity within Singapore (Part III, Publicity Rules)

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Wrt publicity within S’pore, main change has been deletion of the expression “approved information”, which had defined the type of information a lawyer or a firm could provide in any publicity advertisement.

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Note: Not governed if firm with office in Shanghai, and advertising in Shanghai

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General Principles – Rules 6 and 7 (Prohibited Publicity)

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Subject to Rule 6, publicity within Singapore may contain any publicity information about the lawyer or his firm.

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Under r 6 any publicity about the lawyer or his firm must: o (i) Ensure content of publicity can be justified (criteria set out in r 6(2))

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(this presupposes that you are allowed to make claims as to expertise)

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(ii) Not mention any past cases, or success rate (that would breach client-confidentiality) (iii) Not compare fees charged, or quality of service with other law firms (iv) Not make reference to any judicial appointments from firm, if that appointed advocate & solicitor is still in office

Ethical o Publicity must not involved breach of confidentiality owed to clients – who your client is is confidential information. o Must seek client’s express consent if want to publicise Rule 6 (1) In publicising his practice or the practice of his law firm or a law corporation of which he is a director or an employee within Singapore, an advocate and solicitor shall ensure that — (a) any claim to expertise or specialisation can be justified; (b) the publicity does not make any direct or indirect mention — (i) of past cases in which or clients for whom the advocate and solicitor, his law firm or the law corporation or any member thereof had acted where the provision of such information will involve a breach of confidentiality owed to any client or former client; or (ii) of the success rate of the advocate and solicitor, his law firm or the law corporation or any member thereof; (c) the publicity does not make any comparison or criticism in relation to the fees charged, or the quality of the services provided, by any other advocate and solicitor or law firm or law corporation; and (d) where an advocate and solicitor who was practising in the law firm or law corporation has been appointed to the judiciary, the publicity shall not make any reference to his appointment during the tenure of his office, except that nothing in this sub-paragraph shall be construed as prohibiting the inclusion of his name in the publicity where his name appears as the name of the law firm or law corporation or forms part thereof.

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Rule 6(2) – Claims in “specialisation” to be justified by reference to criteria in r 6(2) o Criteria to be satisfied before making claim. o Before making a claim to expertise or specialisation, law firm must comply with the 8 factors in Rule 6(2)

Rule 6(2) For the purposes of paragraph (1) (a), the following factors will be taken into account in justifying any claim to expertise or specialisation: (a) academic qualifications; (b) experience; (c) proportion of working time involved; (d) level of success achieved; (e) complexity of law and practice; (f) significance of the matters involving the advocate and solicitor or his law firm or a law corporation of which he is a director or an employee; (g) assessment by peers; and (h) such other matters as the Council may determine to be relevant. •

Rule 6(3) - Touting o New r 6(3) states that “nothing in these Rules shall be interpreted as permitting the doing of anything that may be regarded as “touting” – action which gives the impression of commission or kickbacks or gifts in return for getting clients. o Note that getting someone who is not lawyer or not part of your firm to drum up publicity for you e.g. give brochures or distribute name cards in mailboxes is considered touting. The rationale is that the law firm should remain in control of the manner of advertising. o Law Society Council can easily prove touting if they can get the tout to give evidence  Law Soc v Jeffrey Lim

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Law Soc v Lee Cheong Hon

TOUTING, ADVERTISING AND ATTRACTION OF BUSINESS UNFAIRLY touting is attracting work for oneself in an unfair manner by making use of other persons or various devices Motor Vehicles (Third Party Risks and Compensation) Act (Cap. 189, 2000 Revised Edition) -

must not do anything to attract business unfairly: Law Society of Singapore v. Lee Cheong Hoh [2001] 2 SLR 80

Facts The respondent Lee was found guilty by the Disciplinary Committee (“DC”) of two charges of contravening ss 83(2)(d) and 83(2)(e) of the Legal Profession Act (Cap 161, 1997 Ed) (the “Act”). The misconduct in question related to the sharing of professional fees with an unqualified person. Lee engaged Raymond Mark (“Mark”) to join his firm. Mark’s job related to motor repairers’ claims against third parties (“third party claims”). Under his employment terms, Mark was entitled to 10% of all professional fees collected by the firm in respect of third party claims (the 10% payment). He was also to procure pending files on third party claims from his former employers. Mark brought the firm a substantial number of clients and pending files from his former firm resulting in a significant increase in the fees earned by the firm from third party claims. Mark soon left the firm after he fell out with Lee. Mark later reported Lee to the Law Society. The Law Society alleged that Lee engaged Mark to tout for business and the 10% payment to Mark was a commission or gratification given in return for Mark procuring employment for the firm. Lee argued that - (a) the 10% payment was a performance bonus to reward Mark for his work; (b) Mark was a bona fide employee of the firm with a monthly salary; and (c) the 10% payments were made to him openly and not surreptitiously. The DC however found against Lee and held that disciplinary action be taken against him. Held, suspending the respondent from practice for three years: (1) A law firm was entitled to pay its staff a performance bonus. However, such a bonus was discretionary and the quantum decided by the employer in the light of the firm’s profitability. However, the 10% payment was really a commission or gratification. Mark was paid the 10% payment based on the increased business he brought the firm. It was based on net fees collected for work done in third party claims. He was the only employee who was paid in this manner and his earnings even exceeded that earned by legal assistants and junior partners in the firm. (2) It was clear that Mark was employed by Lee to procure business for the firm. Mark was brought in not to do office work relating to motor claims but to bring in business for the firm. (3) The three objectives for imposing penalties against errant advocates and solicitors were - (a) punishment of the solicitor for the default; (b) deterrence against similar misconduct by like-minded solicitors in the future; and (c) protection of public confidence in the legal profession and the administration of justice. Lee’s misconduct was serious and undermined the integrity and dignity of the profession. As such a mere censure would not suffice. It was necessary to send a clear message to the whole profession that such unprofessional and unethical conduct could not be condoned. breach of these rules may constitutes conduct unbefitting of a solicitor: Re A Solicitor [1945] KB 368 claim may be enforced against him by a client solicitor may be dealt with by the court by censure, suspension, or by being struck off the roll of solicitors: s. 98(1) Legal Profession 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. must refrain at all times from activities that are unprofessional and improper which would expose them to disciplinary action: s. 83 of the Act (power to strike off roll or suspend or censure) -

Lau Liat Meng’s case: above legislation provides that in accident cases, not only party and party costs have to be taxed, but also solicitor and client costs. The Official Assignee will attend the taxation on behalf of the injured party to see that the bill is properly taxed There is professional subtlety to be observed There is nothing to prevent you from entertaining to maintain a good solicitor-client relationship Firms are given tax deductions for their entertaining expenses, but there is a limit to it Routing can take the following form:

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Solicitors acting for a vendor might request the vendor to bring the purchaser so that he can act for both parties • Where a solicitor, who acts for a mortgagee, writes to the mortgator saying that he can act for the latter as well • Those are blatant forms of touting • In the case of house development, s. 79 Legal Profession Act prevents the developer’s solicitors from also acting for the purchasers Acting for housing developer and purchaser prohibited 79. —(1) Where a solicitor acts for a housing developer in a sale of immovable property developed under a housing development, no specified person shall, in the sale of any immovable property developed under the same housing development, act for the purchaser of the property unless a certificate of fitness for occupation in respect thereof has been issued by the Commissioner of Building Control or other relevant authority. [10/91;4/2000] (2) In subsection (1) — “develop”, “housing developer” and “housing development” have the meanings assigned to them, respectively, in the Housing Developers (Control and Licensing) Act (Cap. 130); "sale of immovable property" includes the grant of a lease for a term exceeding 3 years; "specified person" , in relation to a solicitor, means — (a) the solicitor himself; (b) any member or assistant of the firm of which the solicitor is a member either as a partner, consultant or an employee; or (c) any director or employee of the law corporation of which the solicitor is a director or an employee. [4/2000] (3) Subsection (1) is without prejudice to any law affecting solicitors who act for parties where there is a conflict of interest or where a conflict of interest may arise. (4) Disciplinary proceedings may be taken against a solicitor who acts in contravention of subsection (1). • Apart from s. 79 which only deals with housing development conveyances, the Law Society has circularised to the profession that the same should apply in the case of commercial properties: Practice Directions and Rulings of the Law Society • In such situations, the solicitor should withdraw from acting for either party 14.1 Solicitors and Estate Agents Council of Law Society received a query as to whether a solicitor retained to act for an intended vendor of a property may also act as the housing agent and receive a commission on the transaction and whether s. 9(b) of the Appraisers and House Agents Act (Cap. 16) applies The Council had ruled: 1. Inherent conflict of interest in a firm of solicitors assuming the dual function of acting as the client’s solicitors as well as the client’s estate agent. The firm is duty bound to act in the client’s best interest, whereas as the client’s estate agent it is the firm’s own interest to find a buyer, so as to earn a commission 2. The solicitor may, however, in appropriate cases, charge a “fair and reasonable” negotiating fee under the Legal Profession (Solicitors’ Remuneration Order) or charge a commission under s. 109(3) Legal Profession Act when the work done by the solicitor justifies a commission Agreements with respect to remuneration for non-contentious business 109. —(3) The agreement may provide for the remuneration of the solicitor or law corporation by a gross sum, or by commission or percentage, or by salary, or otherwise, and it may be made on the terms that the amount of the remuneration therein stipulated for either shall or shall not include all or any disbursements made by the solicitor or law corporation in respect of searches, plans, travelling, stamps, fees or other matters. 3. S. 9(b) of the Appraisers and House Agents Act, which provides that where an advocate and solicitor acts as a house agent, he does not need to apply for a license does not detract from Council’s aforementioned ruling The Council has recently ruled that counsel carrying on the business of a housing agent in tandem with that of a lawyer is incompatible. The calling of a housing agent ‘broker’ would detract the honour and dignify of the Bar

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Rule 7 – Restrictions o Restrictions under Rule 7:  Ensure no false promises and that publicity is factually accurate  No publicity to undermine public confidence in the legal profession (See: section 83(2)(h) LPA)  Relevant to manner and production of publicity  Council with the right to deny publicity it considers to be in breach (ss. (1)(c)) o Significance: Gives clients fair and accurate information on the law practice Rule 7 (1) No advocate and solicitor shall publicise his practice or the practice of his law firm or a law corporation of which he is a director or an employee in a manner which —

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is likely to diminish public confidence in the legal profession or to otherwise bring the legal profession into disrepute;

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may reasonably be regarded as being misleading, deceptive, inaccurate, false or unbefitting the dignity of the legal profession; (see r 7(2) for definition) or

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the Council may determine to be an undesirable manner of publicising the practice of an advocate and solicitor or a law firm or a law corporation.

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Rule 7(2) – Definition of “misleading, deceptive, inaccurate or false” Rule 7(2) For the purpose of these Rules, publicity shall be considered to be misleading, deceptive, inaccurate or false if (a) it contains a material misrepresentation; (b) it omits to state a material fact; (c) it contains any information which cannot be verified; or (d) it is likely to create an unjustified expectation about the results that can be achieved by the advocate and solicitor or his law firm or the law corporation.

Note: R 5(7) also retains the general prohibition against the use of the armorial bearings of the Law Society in any publicity of a lawyer or firm

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General Advice  If not sure, write to Law Society Council for advice and permission.

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Special Rules – r 8 and r 10

When any of the following scenarios arise, lawyer or law firm must specifically comply with the specific rules. (i)

Contribution to Good Causes – Rule 8 o o o

Main amendment to this rule is that there is now no restriction (unlike previously) against a lawyer or firm being the sole contributor to any good cause. The only publicity law firm can get from contribution to good causes is acknowledgement of their name that it had donated money for the cause – r 8(1) What can be publicised depends on the capacity in which the contribution is made:  Professional capacity as lawyer – r 8(2)(a) – name, fact that he is lawyer and name of law firm he is with  Private capacity – r 8(2)(b) – name and fact that he is lawyer  Law firm / law corporation – r 8(2)(c) – name of law firm / law corporation.

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Rule 8 (1) Subject to this rule, any law firm or law corporation and any advocate and solicitor may contribute to good causes, whether by way of donation, sponsorship or subscription, and any contribution made by the law firm or law corporation or advocate and solicitor may be publicly acknowledged by its recipient. (2) Where an advocate and solicitor or a law firm or a law corporation contributes to any good cause, it shall be the responsibility of the advocate and solicitor or law firm or law corporation to ensure that any public acknowledgment of the contribution does not state any information pertaining to the advocate and solicitor or law firm or law corporation except — (a) in the case of a contribution made by an advocate and solicitor in his professional capacity, his name, the fact that he is an advocate and solicitor and the name of his law firm or a law corporation of which he is a director or an employee; (b) in the case of a contribution made by an advocate and solicitor in his private capacity, his name and the fact that he is an advocate and solicitor; and (c) in the case of a contribution made by the law firm or law corporation, the name of the law firm or law corporation. (3) An advocate and solicitor or a law firm or a law corporation may endow prizes and scholarships at any school or educational institution, and may be identified in the name of any prize or scholarship as the endower thereof. (4) For the purposes of this rule, “good cause” includes any registered charity and any other benevolent cause or cause concerned with the promotion of education, sports or the arts. •

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Comments: o It is now possible to advertise as sponsors for charitable purposes. BUT this cannot be used as backdoor for advertising; Cannot ‘sell’ practice o Note especially situation where lawyer gives a contribution in his professional capacity (ss. (2)(a)) Giving Advice at Legal Clinics – Rule 10 Many lawyers perform this as part of service to comunity o Concern tht this may be construed as way in which one attracts business to firm Rule 10 allows giving of free egal advice butin course of this, not allowed to give any info abt urself or practise except ur name and fact tt u are adv and sol R 10 currently being debated upon o Under discussion whether lawyer can act for the person whom he has given legal advice as long as it is done free of disbursements and free of professional fees cos there is a sandwich class who cannot afford the lawyers. R 10 restates that the restriction that in connection with the giving of free legal advice, a lawyer cannot give any information except his name and the fact that he is a lawyer. For avoidance of any doubt, r 10(3) enacts specifically that in course of giving free legal advice, lawyer cannot: o (i) disclose name of his firm o (ii) distribute any business car, brochure, leaflet or pamphlet of his practice or firm o (iii) act for any person to whom he has given free legal advice thereafter.

Rule 10 (1) An advocate and solicitor may give free legal advice to any person at or through any facility established with a view to providing legal assistance to members of the public. (2) In the course of or in connection with the giving of such free legal advice, an advocate and solicitor shall allow no information pertaining to himself to be publicised except his name and the fact that he is an advocate and solicitor. (3) For the avoidance of doubt, an advocate and solicitor shall not in the course of or in connection with the giving of the free legal advice referred to in paragraph (1) —

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(a) disclose the name of his law firm or a law corporation of which he is a director or an employee; (b) distribute any of his business cards or any brochure, leaflet or pamphlet relating to his practice or the practice of his law firm or a law corporation of which he is a director or an employee; or (c) act for any person to whom he has given such free legal advice. Comments:  Public bodies (eg. Legal clinics), look to members of the private bar to staff it. But Pro bono work cannot be used as an opportunity to advertise and sell the firms’ or own services  Whether such work is set up as a permanent facility or is one-off  Note rule against touting resonating in Rule 10(3) Some debate as to whether rule shld be abolished – public sophisticated enough to judge who to give legal business to o Also many times pple who come for free lgal clinics have no money to pay lawyers – last place to get business is at such legal clinics o But at mmt rule still in place o Until such time as abolished/amended/finetuned – not allowed to take on such cases o

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Client / Third Party Publicity – Rule against Touting (Rule 9) Amended Rule 9 as result of IT and Ethics committees formed in 2000 to study the impact of IT on ethics. The sub-committee studied the impact of IT generally on the practice of law (and not merely from an IT point of view). Amendments to R 6 and r 9, the introduction of Rules11 A and 11B to the Professional Conduct Rules (PCR) and the Guidance Note on Ethics and IT published in the Law Gazette are the result of the work of the sub-committees. Came into operation 1 sept 2001

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Pre-September 2001 position Cannot allow lawyer as an individual to appear in a third party’s publicity o Eg: Internet Company provide information of its panel of lawyers on its website (with hyperlink)  Cannot! o Giving of info of law firm through internet sites of indep third parties Thus – i. No hyperlinking to law firm’s website from client’s site ii. No reference to law firm acting for them to be publicity material in client’s firm brochure iii. No participation in any internet referral service in a legal portal

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Position Post-Amendment (Sept 2001)

Rule 9 (Amendment wef 1 September 2001) Subject to the Act and these Rules — (a) an advocate and solicitor may allow his practice or the practice of his law firm; or (b) a law corporation or a director or an employee of a law corporation may allow the practice of the law corporation, to be publicised in or in conjunction with the publicity of any third party, whether or not the party is a client of the advocate and solicitor, law firm or law corporation. •

Lawyers can participate in any third party publicity, subject to r 6 and r 7 o Rule 9 (as amended wef 1 Sept 2001) allows advocate and solicitor or law firm or law corporation to participate in any third party or client publicity. o Only CAVEAT is in r 6 and r 7 that set out the general principles of publicity within Singapore (see above).  R 7(1) – Established rule of not publicising the practice in false or misleading manner or to bring the legal profession into disrepute and the power of the Council to determine that the publicity is undesirable still stands  R 6 – Rule that advocate and solicitor not call himself or the law practice as an expert or specialist in a field unless conditions in R 6(2) are satisfied remains.

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Lawyer’s responsibility to ensure that r 6 and r 7 are being complied with.

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Why relaxation of rules? o Response to feedback – Council received feedback from members that they were being asked to hyperlink their websites with their clients or to give information on their law firms or lawyers on internet sites of third parties. o Realisation of scope of Internet and benefits to e-commerce – expanding no of services provided on the internet and the growing trend of referral arrangement for work between law firms and third parties thru the internet. o Clients give credibility to their business where they advertise or mention their lawyers

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Clear Guidelines as to Extent that Third Party Publicity would be Permissible o New R 6(3) – “nothing in these rules shall be interpreted as permitting the doing of anything… that… may reasonably be regarded as touting”. o This rule reminds members that although Council has allowed lawyers to participate in client or third party publicity, the law against touting still exists and members must be mindful of it when engaging in any publicity whether directly or through third parties or clients.

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Note compliance still required for Rules 11A and 11B, Professional Conduct Rules (see previous lectures)introduced sept 2001 o Rule 11A, PCR (touting and referrals)

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General principle – must not tout for business or donating likely to lead to inerence tt done for purpose of touting

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Where client referred to lawyer by 3rd party – 6 oblig o Maintain indep and integrity of profession and not allow referror to undermine this o Not to reward referror by payment of any form of consideration o Not to allow referror to affect legal advice to be given o Not allow referror to undermine duty to provide client with impartial and indep advice o Not allow referror to influence any decision taken in nature, style and extent of practice o Duty to comm with client directly to obtain instructions (save for usual provn save where client authorises) Compliance requires –  That no agreement to be made where consideration is to be paid by law firm for every piece of work referred to you (Cf. US companies’ websites)  Got to brief referror and not allow information to be loaded on the website without your prior approval  None of the wording contained in the site should refer/ allude to “touting” or unfairly attracting work (eg. Laudatory remarks like ‘the best…’)  Manner of publicity, not to be undesirable to the dignity of the legal profession Rule 11B, PCR (agreement for referrals) Compliance requires –

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Referral agreement to be in place and in writing Agreement must contain the following terms – • Referror to undertakt to comply with PC rules • Adv and sol must terminate agreement if reason to believe tt referror in breach of any of the terms • Any publicity of referror making ref to service provided must not suggest o Tt conveyancing service is free o Tt diff charges apply according to whether or not it is adv or solicitor • Any such publicity of referror must not state that the availability or price of service of referor himself may be giving to client will be conditional on client using you as adv in transaction Must terminate agremenet if breach of this provision 

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May cont to act prior to breach but upon discovery of breach, canot cont to act or take on further referrals Thus, no internet publicity without first signing written agreement 

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*In practice… As long as do not breach general principles in Rules 6 and 7 and Rules 11A and 11B (Professional Conduct Rules) 14.2 Publicity Rules Legal Profession (Publicity) Rules (Cap. 161, Rule 71(1), R 13, 2000 Revised Edition), revoked 1996 Publicity Rules, new Rules represent the second amendment to the Publicity Rules Publicity within Singapore (Part III), Publicity outside Singapore (Part IV)

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(a) Publicity within Singapore (Part III of the new Rules) • New Rules (subject to Rule 6), publicity within Singapore may contain any publicity information about the lawyer or his firm • However, under Rule 6(1) any publicity about the lawyer or his firm must not make: i. Any direct or indirect mention of past cases or clients would involve a breach of confidentiality owed to a client or former client; ii. Any direct or indirect mention of the success rate of the lawyer or his firm; iii. Comparison or criticism in relation to fees or quality of service provided by another lawyer or firm; and iv. Any reference to a lawyer of the firm appointed to the judiciary during tenure of his office • Rule 6(2), a lawyer or his firm can make a claim to expertise or specialisation if the same can be justified by reference to criteria set out in Rule 6(2)(a) to (h) of the new Publicity Rules: a) Academic qualification; b) Experience; c) Proportion of working involved; d) Level of success achieved; e) Complexity of law and practice; f) Significance of the matters involving the lawyer or his firm; g) Assessment by peers; and h) Other matters as the Council of the Law Society may determine to be relevant. • Rule 6(3) of the new Publicity Rules states that “nothing in these Rules shall be interpreted as permitting the doing of anything that may be regarded as ‘touting’” • Rule 7 sets out the same general rule on prohibited means of publicity as was enacted in Rules 5(2) and (3) of the old Rules, meaning that a lawyer cannot publicize his practice or that of his firm in a manner which: a) Would diminish public confidence; b) May be regarded as misleading, deceptive, inaccurate, false or unbefitting the dignity of the legal profession; or c) The Council determines to be an undesirable manner of publicizing the practice of a lawyer or his firm. • Rule 7(2) of the new Rules Misleading, deceptive, inaccurate or false, etc., publicity 7. —(2) For the purpose of these Rules, publicity shall be considered to be misleading, deceptive, inaccurate or false if — (a) it contains a material misrepresentation; (b) it omits to state a material fact; (c) it contains any information which cannot be verified; or (d) it is likely to create an unjustified expectation about the results that can be achieved by the advocate and solicitor or his law firm or the law corporation. • Rule 5(5) also retains the general prohibition against the use o the armorial bearings of the Law Society in any publicity of a lawyer or firm General responsibilities 5. —(5) No publicity relating to the practice of any advocate and solicitor or law firm or law corporation shall make use of the armorial bearings of the Law Society. (b) Rules 8, 9 and 10 contributions to good causes (Rule 8):  there is no restriction against a lawyer or firm being the sole contributor to any good cause

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third party publicity (Rule 9):  Rule 9 allows an advocate and solicitor or law firm or law corporation to participate in any third party or client publicity • giving of free legal advice (Rule 10):  Rule 10 restates that the restriction that in connection with the giving of free legal advice, a lawyer cannot give any information except the fact that he is a lawyer  Rule 10(3) enacts that in the course of giving free legal advice a lawyer cannot: i. Disclose the name of his firm; ii. Distribute any business card, brochure, leaflet or pamphlet; iii. Act for any person to whom he has given free legal advice. Contributions to good causes 8. —(1) Subject to this rule, any law firm or law corporation and any advocate and solicitor may contribute to good causes, whether by way of donation, sponsorship or subscription, and any contribution made by the law firm or law corporation or advocate and solicitor may be publicly acknowledged by its recipient. (2) Where an advocate and solicitor or a law firm or a law corporation contributes to any good cause, it shall be the responsibility of the advocate and solicitor or law firm or law corporation to ensure that any public acknowledgment of the contribution does not state any information pertaining to the advocate and solicitor or law firm or law corporation except — (a) in the case of a contribution made by an advocate and solicitor in his professional capacity, his name, the fact that he is an advocate and solicitor and the name of his law firm or a law corporation of which he is a director or an employee; (b) in the case of a contribution made by an advocate and solicitor in his private capacity, his name and the fact that he is an advocate and solicitor; and (c) in the case of a contribution made by the law firm or law corporation, the name of the law firm or law corporation. (3) An advocate and solicitor or a law firm or a law corporation may endow prizes and scholarships at any school or educational institution, and may be identified in the name of any prize or scholarship as the endower thereof. (4) For the purposes of this rule, “good cause” includes any registered charity and any other benevolent cause or cause concerned with the promotion of education, sports or the arts. Third party publicity 9. Subject to the Act and these Rules — (a) an advocate and solicitor may allow his practice or the practice of his law firm; or (b) a law corporation or a director or an employee of a law corporation may allow the practice of the law corporation, to be publicised in or in conjunction with the publicity of any third party, whether or not the party is a client of the advocate and solicitor, law firm or law corporation. Giving of free legal advice 10. —(1) An advocate and solicitor may give free legal advice to any person at or through any facility established with a view to providing legal assistance to members of the public. (2) In the course of or in connection with the giving of such free legal advice, an advocate and solicitor shall allow no information pertaining to himself to be publicised except his name and the fact that he is an advocate and solicitor. (3) For the avoidance of doubt, an advocate and solicitor shall not in the course of or in connection with the giving of the free legal advice referred to in paragraph (1) — (a) disclose the name of his law firm or a law corporation of which he is a director or an employee; (b) distribute any of his business cards or any brochure, leaflet or pamphlet relating to his practice or the practice of his law firm or a law corporation of which he is a director or an employee; or (c) act for any person to whom he has given such free legal advice. (c) Publicity outside Singapore (Part IV) Rule 11, so long as it is not “contrary to the laws of that country” (d) How to determine jurisdiction where publicity is conducted - Rule 12  “deemed to be conducted in the jurisdiction in which it is reasonably expected to be received or accessible in the normal course of event.” (e) Internet publicity - Rule 12(3)  conducted through “a mass medium, electronic or otherwise and accessible in the normal course of events to the general public in Singapore” will be subject to the provision of Part III of the new Rules, that is, rules on publicity within Singapore

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Publicity outside Singapore 11. —(1) An advocate and solicitor may publicise his practice or the practice of his law firm or a law corporation of which he is a director or an employee in a country other than Singapore, and where he does so, Part III shall not apply. (2) Where an advocate and solicitor publicises his practice or the practice of his law firm or a law corporation of which he is a director or an employee in a country other than Singapore, he shall ensure that such publicity is not conducted in a manner that is contrary to the laws of that country. Jurisdiction where publicity is conducted 12. —(1) For the purposes of these Rules, publicity shall be deemed to be conducted in the jurisdiction in which it is reasonably expected to be received or accessible in the normal course of events. (2) Publicity shall not be regarded as being conducted in a jurisdiction if its receipt in such jurisdiction is incidental. (3) For the avoidance of doubt, where the publicity is conducted through a mass medium, electronic or otherwise accessible in the normal course of events to the general public in Singapore as well as in other jurisdictions, including but not limited to publicity conducted through the internet, such publicity shall be subject to the provisions of Part III. 14.3 Sharing Premises matter of degree, but if you were to openly share an office without any proper partition, that would be improper improper and a breach of professional conduct if by sharing premises: a) the solicitor attracts business unfairly to himself; b) the trade or the other occupation conducted by the third party is inconsistent with the standing of an advocate and solicitor; c) a solicitor’s duty to maintain confidentiality of his clients’ affairs is put at risk Council has ruled that sharing premises with a real estate agent falls within paragraph (a) and (b) above: issued by the Council of the Law Society in Feb 1995 6.

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Publicity outside Singapore (Part IV, Publicity Rules) For publicity outside Singapore, Part VI Publicity Rules applies. Part III (Rules 6-10) is NOT applicable – Rule 11

Rule 11 (1) An advocate and solicitor may publicise his practice or the practice of his law firm or a law corporation of which he is a director or an employee in a country other than Singapore, and where he does so, Part III shall not apply. •

Rule on publicity outside Singapore (R 11(2)) has been further liberalised to enable lawyer or his firm to publicise his practice so long as it is not ‘contrary to the laws of that country’. Rule 11 (2) Where an advocate and solicitor publicises his practice or the practice of his law firm or a law corporation of which he is a director or an employee in a country other than Singapore, he shall ensure that such publicity is not conducted in a manner that is contrary to the laws of that country. NB: Internet = borderless!!!

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Rule 12 - Can publicise outside country but ensure that rules not contravened *How to determine Jurisdiction where the publicity is conducted? o R 12(1) of the new rules enacts that publicity shall be ‘deemed to be conducted in the jurisdiction in which it is reasonably expected to be received or accessible in the normal course of events.’

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Internet Publicity – Rule 12(3) o Any such advert must comply with publicity rules  With globalisation law soc understands tt diff to police publicity on internet – may gradually be allowed

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R 12 (3) specifically enacts that Internet Publicity will be treated as publicity within Singapore. R 12(3) also specifically enacts that publicity conducted through ‘a mass medium, electronic or otherwise and accessible in the normal course of events to the general public in Singapore’ will be subject to the provision of Part III of Publicity Rules (rules on publicity in Singapore). Therefore, Part III applies where –

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If the medium used is the Internet, then the publicity has to be governed by Part III (even if the website is based outside Singapore)  Includes situation where aware that the publicity can be easily received in Singapore in the normal course of events Rationale  Cannot abuse or evade publicity rules by advertising abroad Note also, where advertise abroad, ensure do not breach rules of foreign country – Rule 11(2) above.

Rule 12 (1) For the purposes of these Rules, publicity shall be deemed to be conducted in the jurisdiction in which it is reasonably expected to be received or accessible in the normal course of events. (2) Publicity shall not be regarded as being conducted in a jurisdiction if its receipt in such jurisdiction is incidental. (3) For the avoidance of doubt, where the publicity is conducted through a mass medium, electronic or otherwise accessible in the normal course of events to the general public in Singapore as well as in other jurisdictions, including but not limited to publicity conducted through the internet, such publicity shall be subject to the provisions of Part III. •

How do we know S’pore law firm us making false advertisement in other jurisdiction? o Section 83(2)(h), LPA provides very broad powers to the courts to suspend or strike off the roll. This section applies even though Part III of Publicity Rules does not apply.

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Section 83(2) LPA –  83(2) d-g

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83.2.d – not allowed to retain or give or consent to retention of any fees payable by client any gratifn to a person for having procured that business ie not allowed to give referror cut on egal fees that u earn on tt transaction

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e – cannot procure employ of urself in any transacton by promising to give any remuneration to any third party f- prohibits emp of any person who has proclaimed the tout under any written law • this written law is section 62 Sub courts act – wherein the courts can publish a list of person proclaimed to be touts (this exclues them fr vicinity of court premises) • sub courts act section 62, SCJA section 73

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g – not allow any tout or unauthd person to carry on legal business in ur name where other person not under direct or legal control- ensure that there is supervision

Section 83, LPA (1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding 5 years or censured. (2) Such due cause may be shown by proof that an advocate and solicitor – … (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession;

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If publicity abroad complies, but Law Society feels it affects the dignity of the legal profession of Singapore, it can consider disciplinary action. Does not have to prove a link to professional capacity in Singapore

CASES

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Usu Council gives warning to adv involved and duty to rectify the sitn under rule 5 – thn end of matter But if very serious breach, matter can become subj matter of complaint, go through inquiring committee and discip committee Some of these cases rsovled at inq committee stage and in many, penalties imposed – Two partr cases Law soc of sg v law see jin jeffrety (1999) 2 SLR 215  Breach found – suspension of adv involved Law soc of singapore v disciplinary committee (2000) 4 SLR 413  No breach found Still pending –  Eg of cases where matter pursued by law soc council • Vouchers – sol gave away vouchers to real estate agent referring work to firm; (shopping vouchers) • Cash back – more obv case – allegation that a commission was given pared against legal fees that firm charged. On face of it, if proven, appears to be clear sitn Before new rules in force, partr cse where law firm gave out angbao packets – they wre found to be be doing undesirable publicity Now rules come a long way

SECTION 2 – THE PROFESSION’S MONOPOLY 2.1 The General Rule • s. 32 & 33 Qualifications to practise 32. —(1) Subject to this Part, no person shall practise as an advocate and solicitor or do any act as an advocate or a solicitor unless his name is on the roll and he has in force a practising certificate. (2) A person who is not so qualified is referred to in this Act as an unauthorised person. (3) A Judge may, if he thinks fit, on the application of a solicitor who is a master under Part II allow his pupil who has completed not less than 4 months of his pupillage to appear on behalf of the master or the firm in which the master is a partner or consultant, or the law corporation in which the master is a director or consultant or an employee, before — (a) a Judge or the Registrar in chambers; (b) a District Judge or the Registrar of a District Court in chambers; and (c) a District Judge or a Magistrate to mention a case or to apply for bail. [4/2000;35/2001] Unauthorised person acting as advocate or solicitor 33. —(1) Any unauthorised person who — (a) acts as an advocate or a solicitor or an agent for any party to proceedings or as such advocate, solicitor or agent sues out any writ, summons or process, or commences, carries on, solicits or defends any action, suit or other proceeding in the name of any other person or in his own name in any of the courts in Singapore or draws or prepares any document or instrument relating to any proceeding in the courts in Singapore; or (b) wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorised to act as an advocate or a solicitor, or that he is recognised by law as so qualified or authorised, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 6 months or to both. (2) Without prejudice to the generality of subsection (1), any unauthorised person who, directly or indirectly — (a) draws or prepares any document or instrument relating to any movable or immovable property or to any legal proceeding; (b) takes instructions for or draws or prepares any papers on which to found or oppose a grant of probate or letters of administration; (c) draws or prepares any document or instrument relating to the incorporation or formation of a limited company; (d) on behalf of a claimant or person alleging himself to have a claim to a legal right writes, publishes or sends a letter or notice threatening legal proceedings other than a letter or notice that the matter will be handed to a solicitor for legal proceedings; or

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(e) solicits the right to negotiate, or negotiates in any way for the settlement of, or settles, any claim arising out of personal injury or death founded upon a legal right or otherwise, shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, be guilty of an offence. (3) Any unauthorised person who, for or in expectation of any fee, gain or reward, offers or agrees to place at the disposal of any other person the services of an advocate and solicitor shall be guilty of an offence. [35/2001] (4) Subsection (3) shall not apply to any person who offers or agrees to place at the disposal of any other person the services of an advocate and solicitor pursuant to a lawful contract of indemnity or insurance. (5) Every person who is convicted of an offence under subsection (2) or (3) shall be liable for a first offence to a fine not exceeding $500 or in default of payment to imprisonment for a term not exceeding 3 months and for a second or subsequent offence to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 6 months or to both. (6) Any act done by a body corporate which in the case of a person would be an offence under subsection (1), (2) or (3) or is of such a nature or is done in such a manner as to be calculated to imply that the body corporate is qualified or recognised by law as qualified to act as a solicitor, or has the capacity or powers of a law corporation when in fact the body corporate does not, shall be an offence and the body corporate shall be liable on conviction for a first offence to a fine not exceeding $1,000 and for a second or subsequent offence to a fine not exceeding $3,000. [4/2000] (7) Where the act mentioned in subsection (6) is done by a director, an officer or employee of the body corporate, the director, officer or employee shall, without prejudice to the liability of the body corporate, be liable to the punishments provided in subsection (5). (8) Where any firm does an act which in the case of a person would be an offence under subsection (1), (2) or (3), every member of the firm shall be deemed to have committed that offence unless he proves that he was unaware of the commission of the act. (9) Any person who does any act in relation to a contemplated or instituted proceeding in the Supreme Court which is an offence under this section shall also be guilty of a contempt of the court in which the proceeding is contemplated or instituted and may be punished accordingly irrespective of whether he is prosecuted for the offence or not. (10) In this section, “document” and “instrument” do not include — (a) a will or other testamentary document; or (b) a transfer of stock containing no limitation thereof. • s. 33 deals with the case of unauthorized persons acting as advocates and solicitors • debt-collecting agencies have written letters threatening to sue which are caught under this provisions 2.2 Exceptions 1. s. 29: (2)(a) Attorney-General, the Solicitor, State Counsel, Deputy Public Prosecutors and qualified persons (b) the Public Trustee, Official Assignee, Assistant Public Trustees and Assistant Official Assignees (c) the Director of Legal Aid and Assistant Directors of Legal Aid 2. s. 34, the prohibition against practicing law in s. 33 does not extend to: (d) any other public officer drawing or preparing instruments (e) any person acting personally for himself only in any matter or proceeding to which he is a party (f) any bona fide and full-time employee 3. s. 34(h): “any full-time member of the academic staff of the National University of Singapore or of any department of law in any other institution of higher learning in Singapore who is a qualified person rendering any opinion or acting in an advisory capacity on any matter in which he has been instructed by an advocate and solicitor” 4. s. 35(1) – s. 32 & 33 shall not extend to: (a) any arbitrator or umpire lawfully acting in any arbitration proceedings (b) any person representing any party in arbitration proceedings (c) the giving of advice, preparation of documents and any other assistance in relation to or arising out of arbitration proceedings except for the right of audience in court proceedings 2.3 Case Illustration • Pilbrow v Pearless De Rougemont & Co [1999] 3 All ER 355:

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Receptionist told him that she would arrange an appointment with L, but did not tell him that L was not a solicitor Although L handled the matter competently, P lost his case and subsequently refused to pay his bill Court of Appeal held that where a firm of solicitors was asked by a client to provide the services of a solicitor, it was not entitled to recover its costs if it provided an adviser who was not a solicitor and failed to inform the client of that fact Court further held that a receptionist of a firm of solicitors should either: (i) refer the client to a solicitor; (ii) refer the client to someone which is not a solicitor but inform the client; or (iii) in some circumstances, refer the client to someone whom the receptionist knows is not or may not be a solicitor without informing the client of the fact, but tell the referee that the client has asked for a solicitor If the 3rd course is adopted, and the referee is not a solicitor, he has a duty to make that clear to the client immediately

GUIDANCE NOTE OF THE LAW SOCIETY ON THICS AND INFORMATION TECHNOLOGY 1. E-MAIL Adopting of an e-mail policy for the law firm 1) e-mails should not contain particulars that a law firm will not include in its correspondence 2) e-mails should identify the sender and his designation in the law firm Rule 8 of the Professional Conduct Rules, a lawyer must ‘exercise proper supervision over his employees and other staff’ the adopted e-mail policy by a law firm should ensure the proper supervision of all staff over the use of email in their practice 3) recommended that law firms ensure that if e-mail is used as a communication system that the system is checked regularly for incoming e-mail and e-mails are distributed promptly to recipients 4) there should be an automated out-of-office response used when a lawyer or critical staff is away from the office for a day or more 5) also recommended that a record of all outgoing and incoming e-mails sent under a client’s file be kept whether as a paper record on file or stored by electronic means 6) recommended that, as a matter of courtesy to a fellow lawyer, important or urgent messages, notices or documents are not sent by e-mail without prior notification of their dispatch 7) as e-mails can transmit viruses to or from a law firm’s computer system, every law firm should install and maintain anti-virus software to ward against such risks Client Confidentiality and e-mail Rule 24 of Professional Conduct Rules, a lawyer must not disclose any confidential information received as a result of the retainer or contents of documents recording clients’ instructions 8) Care must be taken to e-mail containing confidential information is protected If the law firm cannot ensure or has doubts as to the secured nature of communication via e-mail, then the law firm should obtain the prior informed consent of his client on the use of e-mail as a means of communication 9) Confidential warnings should be added to all e-mails sent by the law firm in the course of its practice to warn unintended recipients of the confidential nature of the e-mail message Suggested example of an automated confidential warning modified from the Law Society of England’s email guidance note is as follows: Information in this message is confidential and may be legally privileged. It is intended solely for the person to whom it is addressed. If you are not the intended recipient, please notify the sender, and please delete the message and any other record of it from your system immediately Giving professional undertaking via e-mail 10) law firm will be advised to exercise caution when accepting a professional undertaking via e-mail and to take steps to verify that the purported sender had in fact sent the undertaking given via e-mail 2. PRACTISING LAW ON THE INTERNET Virtual Law Firm Act in s. 25(1)(a), however, requires every practicing lawyer to declare the ‘principal and any other address or addresses at which he practices in Singapore’ Law firms must have a place of business at which clients may meet their lawyers and where mail and telephone calls are received LPA - Practising certificates

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25. —(1) Every solicitor shall, in every year before he does any act in the capacity of an advocate and solicitor, deliver or cause to be delivered to the Registrar an application for a practising certificate in such form as may be prescribed by and in accordance with rules made under this section, the application to be accompanied by — (a) a declaration in writing stating — (i) his full name; (ii) the name under which he practises if different from his own name, or the name of the solicitor or firm of solicitors or law corporation employing him; and (iii) the principal and any other address or addresses at which he practises in Singapore; A ‘virtual office’ is not allowed Client identification on the internet Professional Conduct Rules do not require you to meet your clients ‘face to face’ Law firm takes necessary steps to verify their client’s identity and their legal capacity In the case of taking instructions from an agent, there is an obligation under r 23 of the Professional Conduct Rules for the lawyer to ensure there is evidence of the agent’s authority to act on behalf of the client Authority of client’s agent 23. An advocate and solicitor shall ensure that an agent giving instructions on behalf of a client has the required authority to do so and, in the absence of evidence of such authority, the advocate and solicitor shall, within a reasonable time thereof, confirm the instructions with the client. Lawyer must ‘within a reasonable time thereof, confirm the instructions with the client’ Client care Professional Conduct Rules apply Clients must receive adequate information on costs, progress of the case, e-mails must, with reasonable dispatch, be responded to and proposals of settlement and positions taken by other parties explained in a clear manner 3. PAYMENT OF LEGAL FEES BY CREDIT CARD Council has approved the use of credit cards for the payment of a law firm’s bill costs from 1 Oct 2001 only if the law firm complies with the Practice Direction of the Council Law firm must ensure the agreement, between the Bank and the law firm, contains terms to preserve clients’ confidentiality and that payment of service charge is not deducted from the law firm’s bill 4. PUBLICITY AND SECTION 33 OF THE ACT publicity conducted through the internet is subject to the rules that govern publicity in Singapore law firm’s website can be used as an advertising tool or to provide generic legal information if legal advice is given, a law firm must realize that it could give rise to attendant obligations consider appropriate disclaimers Publicity Rules, with the amendment of Rule 9 on 1 Sept 2001, a law firm’s website can be hyperlinked to a client’s or third party’s website Third party publicity 9. Subject to the Act and these Rules — (a) an advocate and solicitor may allow his practice or the practice of his law firm; or (b) a law corporation or a director or an employee of a law corporation may allow the practice of the law corporation, to be publicised in or in conjunction with the publicity of any third party, whether or not the party is a client of the advocate and solicitor, law firm or law corporation. If legal advice is given or a document is prepared and dispatched through a third party, the law firm must be aware of the terms of s. 33 of the Act Unauthorised person acting as advocate or solicitor 33. —(1) Any unauthorised person who — (a) acts as an advocate or a solicitor or an agent for any party to proceedings or as such advocate, solicitor or agent sues out any writ, summons or process, or commences, carries on, solicits or defends any action, suit or other proceeding in the name of any other person or in his own name in any of the courts in Singapore or draws or prepares any document or instrument relating to any proceeding in the courts in Singapore; or (b) wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorised to act as an advocate or a solicitor, or that he is recognised by law as so qualified or authorised, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 or to

Professional Responsibility (8) – Publicity Rules imprisonment for a term not exceeding 6 months or to both. (2) Without prejudice to the generality of subsection (1), any unauthorised person who, directly or indirectly — (a) draws or prepares any document or instrument relating to any movable or immovable property or to any legal proceeding; (b) takes instructions for or draws or prepares any papers on which to found or oppose a grant of probate or letters of administration; (c) draws or prepares any document or instrument relating to the incorporation or formation of a limited company; (d) on behalf of a claimant or person alleging himself to have a claim to a legal right writes, publishes or sends a letter or notice threatening legal proceedings other than a letter or notice that the matter will be handed to a solicitor for legal proceedings; or (e) solicits the right to negotiate, or negotiates in any way for the settlement of, or settles, any claim arising out of personal injury or death founded upon a legal right or otherwise, shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, be guilty of an offence. (3) Any unauthorised person who, for or in expectation of any fee, gain or reward, offers or agrees to place at the disposal of any other person the services of an advocate and solicitor shall be guilty of an offence. [35/2001] (4) Subsection (3) shall not apply to any person who offers or agrees to place at the disposal of any other person the services of an advocate and solicitor pursuant to a lawful contract of indemnity or insurance. (5) Every person who is convicted of an offence under subsection (2) or (3) shall be liable for a first offence to a fine not exceeding $500 or in default of payment to imprisonment for a term not exceeding 3 months and for a second or subsequent offence to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 6 months or to both. (6) Any act done by a body corporate which in the case of a person would be an offence under subsection (1), (2) or (3) or is of such a nature or is done in such a manner as to be calculated to imply that the body corporate is qualified or recognised by law as qualified to act as a solicitor, or has the capacity or powers of a law corporation when in fact the body corporate does not, shall be an offence and the body corporate shall be liable on conviction for a first offence to a fine not exceeding $1,000 and for a second or subsequent offence to a fine not exceeding $3,000. [4/2000] (7) Where the act mentioned in subsection (6) is done by a director, an officer or employee of the body corporate, the director, officer or employee shall, without prejudice to the liability of the body corporate, be liable to the punishments provided in subsection (5). (8) Where any firm does an act which in the case of a person would be an offence under subsection (1), (2) or (3), every member of the firm shall be deemed to have committed that offence unless he proves that he was unaware of the commission of the act. (9) Any person who does any act in relation to a contemplated or instituted proceeding in the Supreme Court which is an offence under this section shall also be guilty of a contempt of the court in which the proceeding is contemplated or instituted and may be punished accordingly irrespective of whether he is prosecuted for the offence or not. (10) In this section, “document” and “instrument” do not include — (a) a will or other testamentary document; or (b) a transfer of stock containing no limitation thereof. Qualifications to section 33 34. Section 33 does not extend to — (a) the Attorney-General or the Solicitor-General or any other person acting under the authority of either of them; (b) the Public Trustee, the Official Assignee, Assistant Public Trustees and Assistant Official Assignees acting in the course of their duties under any law relating to those offices; (c) the Director of Legal Aid and Assistant Directors of Legal Aid acting in the course of their duties under the provisions of the Legal Aid and Advice Act (Cap. 160); (d) any other public officer drawing or preparing instruments in the course of his duty; (e) any person acting personally for himself only in any matter or proceeding to which he is a party; (f) any bona fide and full-time employee of an insurance company negotiating for the settlement of or settling a claim made or contemplated against any person or body corporate in cases where the claim, arising out of personal injury or death, relates to a risk insured by that insurance company; (g) Deleted by Act 23/2004, wef 14/09/2004.

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Professional Responsibility (8) – Publicity Rules

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(h) any full-time member of the academic staff of any department of the National University of Singapore or of any department of law in any other institution of higher learning in Singapore who is a qualified person rendering any opinion or acting in an advisory capacity on any matter in which he has been instructed by an advocate and solicitor; (i) any accountant drawing or preparing documents in the exercise of his profession; (j) any proceeding before the Industrial Arbitration Court or the Syariah Court; (k) any person merely employed to engross any instrument or proceeding; (l) any approved company auditor drawing or preparing any instrument which he is empowered to do under any law for the time being in force relating to companies; or (m) any agent duly authorised to the satisfaction of the Registrar of Trade Marks drawing or preparing documents in any matter relating to trade marks. Authorised persons, as defined under the Act, can provide the legal services in s. 33 For eg. If your client requested you to prepare a letter of demand threatening legal proceedings for a debt owed and requested the same be dispatched to them via e-mail to enable them to forward the same to the debtor via e-mail, you should refuse to do so 5. ONLINE REFERRAL AND INTRODUCTION SCHEMES s. 83(2)(c) & (d) of the Act participation in any internet referral schemes which requires the law firm to pay a fee or share fees paid for legal services referred would be a breach of the Act s. 83(2)(b) & (h) of the act Power to strike off roll or suspend or censure 83. —(2) Such due cause may be shown by proof that an advocate and solicitor — (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor; (c) has been adjudicated bankrupt and has been guilty of any of the acts or omissions mentioned in section 124 (5) (a), (b), (c), (d), (e), (f), (h), (i), (k), ( l) or (m) of the Bankruptcy Act (Cap. 20); (d) has tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself or any other advocate and solicitor; (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; *Exams!!! Publicity Rules normally in the form of Problem Questions