Sol's Liability
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SECTION 11 – THE SOLICITOR’S LIABILITY 11.1 As an Officer of the Court 1) a solicitor may nevertheless be summarily ordered to make good a loss caused by his neglect or breach of duty: Marsh v. Joseph [1987] 1 Ch 213 at p. 245 2) or with a view to securing honesty in the conduct of officers of the court, to perform certain undertakings: United Mining and Finance Corporation Ltd. V. Becher [1910] 2 KB 294 at p. 304 3) or to pay over monies to his client: Re A Solicitor, Ex parte Hales [1907] 2 KB 539 p. 544 or to pay costs: Brendon v. Spiro (supra) or he may be suspended or have his name struck off the roll for misconduct: Re Gregg, Re Prance [1869] LR 9 Eq p.141 11.2 Contempt of Court Criminal Contempt • For instance, he insolently defies a judge in open court or uses improper language to a judge Procedural/Civil Contempt • For instance, where he fails to perform an undertaking given by him 11.3 Undertakings undertaking may be enforced summarily upon application to the court it must be shown that the undertaking is given by the solicitor personally, and not merely as agent on behalf of his client; the undertaking must also be given by the solicitor immaterial that no misconduct on the part of the solicitor is suggested solicitor cannot withdraw from his undertaking save by consent Re a Solicitor [1932] 1 MLJ 177 Seah Choon Chye v. Saraswathy Devi [1971] 1 MLJ 112 11.4 Liability for Costs 1. Court can, under Order 59, Rule 8 of the Rules of Court, summarily visit him with costs occasioned by his misconduct, negligence or default Personal liability of solicitor for costs (O. 59, r. 8) 8. —(1) Subject to this Rule, where it appears to the Court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition, the Court may make against any solicitor whom it considers to be responsible (whether personally or through an employee or agent) an order — (a) disallowing the costs as between the solicitor and his client; and (b) directing the solicitor to repay to his client costs which the client has been ordered to pay to other parties to the proceedings; or (c) directing the solicitor personally to indemnify such other parties against costs payable by them. (2) No order under this Rule shall be made against a solicitor unless he has been given a reasonable opportunity to appear before the Court and show cause why the order should not be made, except where any proceedings in Court or in Chambers cannot conveniently proceed, and fails or is adjourned without useful progress being made — (a) because of the failure of the solicitor to attend in person or by a proper representative; or (b) because of the failure of the solicitor to deliver any document for the use of the Court which ought to have been delivered or to be prepared with any proper evidence or account or otherwise to proceed. (3) Before making an order under this Rule, the Court may, if it thinks fit, refer the matter (except in the case of undue delay in the drawing up of, or in any proceedings under, any order or judgment as to which the Registrar has reported to the Court) to the Registrar for inquiry and report and direct the solicitor in the first place to show cause before him. (4) The Court may, if it thinks fit, direct or authorise the Attorney-General to attend and take part in any proceedings or inquiry under this Rule, and may make such order as it thinks fit as to the payment of his costs. (5) The Court may direct that notice of any proceedings or order against a solicitor under this Rule shall be given to his client in such manner as may be specified in the direction. (6) Where in any proceedings before the Registrar on taxation the solicitor representing any party is guilty of neglect or delay or puts any other party to any unnecessary expense in relation to those proceedings,
the Registrar may direct the solicitor to pay costs personally to any of the parties to those proceedings; and where any solicitor fails to leave his bill of costs for taxation within the time fixed by an order of Court or otherwise delays or impedes the taxation, then, unless the Registrar otherwise directs, the solicitor shall not be allowed the fees to which he would otherwise be entitled for drawing his bill of costs and for attending the taxation. (7) On the taxation of any bill of costs, if one-half or more of the total amount of the bill is taxed off, the Registrar shall have the power to make one or both of the following orders: (a) that the solicitor who presented the bill be disallowed the costs for the work done for and in the taxation of costs; (b) that the solicitor who presented the bill — (i) stamp the bill with the whole of the amount of fees which would be payable if the bill was allowed by the Registrar at the full amount thereof; (ii) be entitled to be reimbursed by the paying party (in the case of a bill between party and party) or his client (in the case of a bill between the solicitor and his client) only the amount of fees payable on the amount allowed on taxation; (iii) pay personally the difference between the amounts of fees mentioned in sub-paragraphs (i) and (ii) above; and (iv) pay personally the fee payable for the Registrar’s Certificate. (8) Where the Registrar makes one or both of the orders under paragraph (7), he shall make a note to that effect on the bill of costs and the order(s) shall be included in the Registrar’s Certificate. Pay either to a third party or by way of indemnity to his own client 2. Court may make an order (against a solicitor whom it considers to be responsible whether personally or through a servant or agent) disallowing the costs and directing the solicitor to personally indemnify the other parties required to pay costs if their conduct has been inexcusable and merits reproof and/or amounts to a serious dereliction of duty: Re Dunstan [2000] 155:2 Federal Law Reports 189 Sushma Lal v. Secretary of State for the Home Department [1992] Imm. AR 303 CA 11.5 Liability for Loss liability can be summarily enforced at the instance of any party damnified, with such liability being limited to the loss actually arising from the negligence or breach of duty where a fund in court is paid out to the wrong person, the solicitor who acted on behalf of the recipient is liable to replace the fund if he knows or ought to have known the true state of facts Re Danger’s Trusts [1889] 41 Ch D 178
Professional liability of law corporation employee: S. 81F(2) S. 81D(4) Any solicitor who provides legal services as a director or employee of a law corporation would still be liable for his own misconduct or negligence in the provision of legal services through that law corporation: s. 81F(1) Professional misconduct 81F. —(1) An act or omission of a solicitor may constitute unsatisfactory professional conduct or professional misconduct even though it is only done or occurs while the solicitor provides legal services through a law corporation. [4/2000] (2) The directors of the law corporation who are solicitors shall be jointly liable to disciplinary proceedings under this Act if the business of the law corporation is conducted in a manner unbefitting an honourable profession and where such conduct cannot be attributed to the act or omission of a particular solicitor or solicitors whose identity is known. Effect of company becoming law corporation 81D. —(4) The mere fact that a solicitor personally provides legal services as a director or an employee of a law corporation shall not affect the personal liability of that solicitor at law.
Part IXA: Foreign Law Firms, Joint Law Ventures and Formal Law Alliances
Joint Collaboration: 2 different arrangements which may be entered by a foreign law firm (s. 130A defines a “foreign law firm” – "foreign law firm" means a foreign law firm with an office or a place of business in Singapore which provides legal services in any foreign law in Singapore or elsewhere and includes a corporation duly constituted for the purpose of practising law) Joint Law Venture (“JLV”) and the Formal Law Alliance (“FLA”) JLV and FLA must be registered pursuant to the Act, on such terms and conditions and for such period as the Attorney-General may think fit Attorney-General may refuse to approve an application without assigning any reason (s. 130B(4) & 130D(4)) Joint Law Venture 130B. —(1) The Attorney-General may, after consulting such authorities as may be prescribed, approve an application by a foreign law firm jointly made with a Singapore law firm to be registered as a Joint Law Venture on such terms and conditions and for such period as the Attorney-General may think fit. (4) The Attorney-General may refuse to approve an application under subsection (1) without assigning any reason. Formal Law Alliance 130D. —(1) The Attorney-General may, after consulting such authorities as may be prescribed, approve an application by a foreign law firm jointly made with a Singapore law firm to be registered as a Formal Law Alliance on such terms and conditions and for such period as the Attorney-General may think fit. (4) The Attorney-General may refuse an application under subsection (1) without assigning any reason.
Professional Conduct: S. 130E: a foreign lawyer practicing Singapore law in a JLV must comply with the Rules relating to professional conduct, ethics and accounts Professional conduct, ethics and accounts 130E. —(1) A foreign lawyer practising Singapore law in a Joint Law Venture shall comply with such rules relating to professional conduct or ethics as may be prescribed in rules made under section 130J unless the Attorney-General, in his discretion, exempts the foreign lawyer from such compliance. [4/2000] (2) Sections 72 and 73 and any rules made thereunder shall apply, with such modifications as may be prescribed, to a Joint Law Venture in respect of the practice of Singapore law. [4/2000] (3) Where a Joint Law Venture has submitted an accountant’s report in compliance with section 73 as applied to it by subsection (2), the Singapore law firm which constitutes part of the Joint Law Venture shall not be required to submit another accountant’s report under that section. [4/2000] (4) Solicitor-client privilege exists between a Joint Law Venture or a Formal Law Alliance and its client in the same way as it exists between a solicitor and his client. [4/2000] (5) Nothing in this section shall affect the solicitor-client privilege that exists between the Singapore law firm or the foreign law firm and a client, as the case may be, which constitutes part of a Joint Law Venture or a Formal Law Alliance.
S. 72 & 73 thereunder apply to a JLV Rules as to keeping of accounts by solicitors 72. —(1) The Council shall make rules — (a) as to the opening and keeping by solicitors of accounts at banks for clients’ money; (b) as to the keeping by solicitors of accounts containing particulars and information as to moneys received, held or paid by them for or on account of their clients; (c) as to the opening and keeping by every solicitor who is a sole trustee, or who is cotrustee only with one or more of his partners, clerks or servants, of an account at a bank for
moneys of any trust of which he is such a sole trustee or co-trustee; (d) as to the keeping by every such solicitor of accounts containing particulars and information as to moneys received, held or paid by him for or on account of any such trust; and (e) empowering the Council to take such action as may be necessary to enable them to ascertain whether or not the rules are being complied with. (2) Such rules may provide for the manner in which the matters referred to in subsection (1) shall apply to law corporations or to Joint Law Ventures or Formal Law Alliances registered under Part IXA. [4/2000] (3) Such rules shall not come into operation until they have been approved by the Chief Justice who may if he thinks fit consult any of the other Judges before giving his approval. (4) Disciplinary proceedings may be taken against any solicitor who contravenes any rules made under this section. Accountant’s report 73. —(1) Every solicitor shall with every application made by him for a practising certificate, unless he satisfies the Council that owing to the circumstances of his case it is unnecessary to do so, deliver to the Registrar a report signed by an accountant (referred to in this section as an accountant’s report) and shall deliver a copy of the accountant’s report to the Society. (2) The accountant’s report shall — (a) state that in compliance with this section and rules made thereunder the accountant has examined the books, accounts and documents of the solicitor or his firm or the law corporation for such accounting period as may be specified in the report; (b) state whether or not the accountant is satisfied, from his examination of the books, accounts and documents produced to him and from the information and explanations given to him, that during the said accounting period the solicitor or his firm or the law corporation has complied with any rules made under section 72 (1) (a) and (b); (c) state, if the accountant is not satisfied as aforesaid, the matters in respect of which he is not so satisfied; (d) contain such information as may be prescribed by rules made by the Council under this section; and (e) be delivered to the Society not more than 6 months (or such other period as may be prescribed by any rules made under this section) after the end of the accounting period specified in the report. [4/2000] (3) Subject to any rules made under this section, the accounting period for the purposes of an accountant’s report shall — (a) begin at the expiry of the last preceding accounting period for which an accountant’s report has been delivered; (b) cover not less than 12 months; (c) terminate not more than 12 months, or such less period as the said rules may prescribe, before the date of the delivery of the report to the Society; and (d) where possible, consistently with paragraphs (a), (b) and (c), correspond to a period or consecutive periods for which the accounts of the solicitor or his firm or the law corporation are ordinarily made up. [4/2000] (4) The Council shall make rules to give effect to this section, and such rules shall prescribe — (a) what qualification shall be held by an accountant by whom an accountant’s report may be given; and (b) the nature and extent of the examination to be made by the accountant of the books and accounts of a solicitor or his firm or the law corporation and of any other relevant documents with a view to the signing of a report to be delivered by the solicitor under this section. [4/2000] (5) Such rules may include provision for — (a) permitting in such special circumstances as may be defined in the rules a different accounting period from that specified in subsection (3); and
(b) regulating any matters of procedure or matters incidental, ancillary or supplemental to this section. (6) Rules made under this section shall not come into operation until they have been approved by the Chief Justice who shall consult the Attorney-General and may, if he thinks fit, consult any of the other Judges before giving his approval. (7) Disciplinary proceedings may be taken against any solicitor who fails to comply with this section or any rules made thereunder. (8) This section shall not apply to a solicitor who applies for a practising certificate to practise as a locum solicitor.
Attorney-General shall give the foreign lawyer a reasonable opportunity to make representations in writing and the Attorney-General may make any of the following orders: 1. Cancel or suspend the registration 2. Censure the foreign lawyer 3. A penalty not exceeding $5,000 4. Make such other order as he thinks fit (s. 130F(3)) Disciplinary proceedings 130F. —(3) Where the Attorney-General has received any complaint under this section or where facts are brought to the knowledge of the Attorney-General which satisfy the Attorney-General that there may be grounds for such a complaint, the AttorneyGeneral shall give the foreign lawyer a reasonable opportunity to make representations in writing, and if he is of the opinion that there is sufficient reason for doing so, the Attorney-General may — (a) cancel or suspend for such period as he may think fit the registration of the foreign lawyer to practise Singapore law; (b) censure the foreign lawyer; (c) order the foreign lawyer to pay a penalty not exceeding $5,000 or such other higher sum as may be prescribed; or (d) make such other order as he thinks fit.
the Registrar may direct the solicitor to pay costs personally to any of the parties to those proceedings; and where any solicitor fails to leave his bill of costs for taxation within the time fixed by an order of Court or otherwise delays or impedes the taxation, then, unless the Registrar otherwise directs, the solicitor shall not be allowed the fees to which he would otherwise be entitled for drawing his bill of costs and for attending the taxation. (7) On the taxation of any bill of costs, if one-half or more of the total amount of the bill is taxed off, the Registrar shall have the power to make one or both of the following orders: (a) that the solicitor who presented the bill be disallowed the costs for the work done for and in the taxation of costs; (b) that the solicitor who presented the bill — (i) stamp the bill with the whole of the amount of fees which would be payable if the bill was allowed by the Registrar at the full amount thereof; (ii) be entitled to be reimbursed by the paying party (in the case of a bill between party and party) or his client (in the case of a bill between the solicitor and his client) only the amount of fees payable on the amount allowed on taxation; (iii) pay personally the difference between the amounts of fees mentioned in sub-paragraphs (i) and (ii) above; and (iv) pay personally the fee payable for the Registrar’s Certificate. (8) Where the Registrar makes one or both of the orders under paragraph (7), he shall make a note to that effect on the bill of costs and the order(s) shall be included in the Registrar’s Certificate. Pay either to a third party or by way of indemnity to his own client 2. Court may make an order (against a solicitor whom it considers to be responsible whether personally or through a servant or agent) disallowing the costs and directing the solicitor to personally indemnify the other parties required to pay costs if their conduct has been inexcusable and merits reproof and/or amounts to a serious dereliction of duty: Re Dunstan [2000] 155:2 Federal Law Reports 189 Sushma Lal v. Secretary of State for the Home Department [1992] Imm. AR 303 CA 11.5 Liability for Loss liability can be summarily enforced at the instance of any party damnified, with such liability being limited to the loss actually arising from the negligence or breach of duty where a fund in court is paid out to the wrong person, the solicitor who acted on behalf of the recipient is liable to replace the fund if he knows or ought to have known the true state of facts Re Danger’s Trusts [1889] 41 Ch D 178
Professional liability of law corporation employee: S. 81F(2) S. 81D(4) Any solicitor who provides legal services as a director or employee of a law corporation would still be liable for his own misconduct or negligence in the provision of legal services through that law corporation: s. 81F(1) Professional misconduct 81F. —(1) An act or omission of a solicitor may constitute unsatisfactory professional conduct or professional misconduct even though it is only done or occurs while the solicitor provides legal services through a law corporation. [4/2000] (2) The directors of the law corporation who are solicitors shall be jointly liable to disciplinary proceedings under this Act if the business of the law corporation is conducted in a manner unbefitting an honourable profession and where such conduct cannot be attributed to the act or omission of a particular solicitor or solicitors whose identity is known. Effect of company becoming law corporation 81D. —(4) The mere fact that a solicitor personally provides legal services as a director or an employee of a law corporation shall not affect the personal liability of that solicitor at law.
Part IXA: Foreign Law Firms, Joint Law Ventures and Formal Law Alliances
Joint Collaboration: 2 different arrangements which may be entered by a foreign law firm (s. 130A defines a “foreign law firm” – "foreign law firm" means a foreign law firm with an office or a place of business in Singapore which provides legal services in any foreign law in Singapore or elsewhere and includes a corporation duly constituted for the purpose of practising law) Joint Law Venture (“JLV”) and the Formal Law Alliance (“FLA”) JLV and FLA must be registered pursuant to the Act, on such terms and conditions and for such period as the Attorney-General may think fit Attorney-General may refuse to approve an application without assigning any reason (s. 130B(4) & 130D(4)) Joint Law Venture 130B. —(1) The Attorney-General may, after consulting such authorities as may be prescribed, approve an application by a foreign law firm jointly made with a Singapore law firm to be registered as a Joint Law Venture on such terms and conditions and for such period as the Attorney-General may think fit. (4) The Attorney-General may refuse to approve an application under subsection (1) without assigning any reason. Formal Law Alliance 130D. —(1) The Attorney-General may, after consulting such authorities as may be prescribed, approve an application by a foreign law firm jointly made with a Singapore law firm to be registered as a Formal Law Alliance on such terms and conditions and for such period as the Attorney-General may think fit. (4) The Attorney-General may refuse an application under subsection (1) without assigning any reason.
Professional Conduct: S. 130E: a foreign lawyer practicing Singapore law in a JLV must comply with the Rules relating to professional conduct, ethics and accounts Professional conduct, ethics and accounts 130E. —(1) A foreign lawyer practising Singapore law in a Joint Law Venture shall comply with such rules relating to professional conduct or ethics as may be prescribed in rules made under section 130J unless the Attorney-General, in his discretion, exempts the foreign lawyer from such compliance. [4/2000] (2) Sections 72 and 73 and any rules made thereunder shall apply, with such modifications as may be prescribed, to a Joint Law Venture in respect of the practice of Singapore law. [4/2000] (3) Where a Joint Law Venture has submitted an accountant’s report in compliance with section 73 as applied to it by subsection (2), the Singapore law firm which constitutes part of the Joint Law Venture shall not be required to submit another accountant’s report under that section. [4/2000] (4) Solicitor-client privilege exists between a Joint Law Venture or a Formal Law Alliance and its client in the same way as it exists between a solicitor and his client. [4/2000] (5) Nothing in this section shall affect the solicitor-client privilege that exists between the Singapore law firm or the foreign law firm and a client, as the case may be, which constitutes part of a Joint Law Venture or a Formal Law Alliance.
S. 72 & 73 thereunder apply to a JLV Rules as to keeping of accounts by solicitors 72. —(1) The Council shall make rules — (a) as to the opening and keeping by solicitors of accounts at banks for clients’ money; (b) as to the keeping by solicitors of accounts containing particulars and information as to moneys received, held or paid by them for or on account of their clients; (c) as to the opening and keeping by every solicitor who is a sole trustee, or who is cotrustee only with one or more of his partners, clerks or servants, of an account at a bank for
moneys of any trust of which he is such a sole trustee or co-trustee; (d) as to the keeping by every such solicitor of accounts containing particulars and information as to moneys received, held or paid by him for or on account of any such trust; and (e) empowering the Council to take such action as may be necessary to enable them to ascertain whether or not the rules are being complied with. (2) Such rules may provide for the manner in which the matters referred to in subsection (1) shall apply to law corporations or to Joint Law Ventures or Formal Law Alliances registered under Part IXA. [4/2000] (3) Such rules shall not come into operation until they have been approved by the Chief Justice who may if he thinks fit consult any of the other Judges before giving his approval. (4) Disciplinary proceedings may be taken against any solicitor who contravenes any rules made under this section. Accountant’s report 73. —(1) Every solicitor shall with every application made by him for a practising certificate, unless he satisfies the Council that owing to the circumstances of his case it is unnecessary to do so, deliver to the Registrar a report signed by an accountant (referred to in this section as an accountant’s report) and shall deliver a copy of the accountant’s report to the Society. (2) The accountant’s report shall — (a) state that in compliance with this section and rules made thereunder the accountant has examined the books, accounts and documents of the solicitor or his firm or the law corporation for such accounting period as may be specified in the report; (b) state whether or not the accountant is satisfied, from his examination of the books, accounts and documents produced to him and from the information and explanations given to him, that during the said accounting period the solicitor or his firm or the law corporation has complied with any rules made under section 72 (1) (a) and (b); (c) state, if the accountant is not satisfied as aforesaid, the matters in respect of which he is not so satisfied; (d) contain such information as may be prescribed by rules made by the Council under this section; and (e) be delivered to the Society not more than 6 months (or such other period as may be prescribed by any rules made under this section) after the end of the accounting period specified in the report. [4/2000] (3) Subject to any rules made under this section, the accounting period for the purposes of an accountant’s report shall — (a) begin at the expiry of the last preceding accounting period for which an accountant’s report has been delivered; (b) cover not less than 12 months; (c) terminate not more than 12 months, or such less period as the said rules may prescribe, before the date of the delivery of the report to the Society; and (d) where possible, consistently with paragraphs (a), (b) and (c), correspond to a period or consecutive periods for which the accounts of the solicitor or his firm or the law corporation are ordinarily made up. [4/2000] (4) The Council shall make rules to give effect to this section, and such rules shall prescribe — (a) what qualification shall be held by an accountant by whom an accountant’s report may be given; and (b) the nature and extent of the examination to be made by the accountant of the books and accounts of a solicitor or his firm or the law corporation and of any other relevant documents with a view to the signing of a report to be delivered by the solicitor under this section. [4/2000] (5) Such rules may include provision for — (a) permitting in such special circumstances as may be defined in the rules a different accounting period from that specified in subsection (3); and
(b) regulating any matters of procedure or matters incidental, ancillary or supplemental to this section. (6) Rules made under this section shall not come into operation until they have been approved by the Chief Justice who shall consult the Attorney-General and may, if he thinks fit, consult any of the other Judges before giving his approval. (7) Disciplinary proceedings may be taken against any solicitor who fails to comply with this section or any rules made thereunder. (8) This section shall not apply to a solicitor who applies for a practising certificate to practise as a locum solicitor.
Attorney-General shall give the foreign lawyer a reasonable opportunity to make representations in writing and the Attorney-General may make any of the following orders: 1. Cancel or suspend the registration 2. Censure the foreign lawyer 3. A penalty not exceeding $5,000 4. Make such other order as he thinks fit (s. 130F(3)) Disciplinary proceedings 130F. —(3) Where the Attorney-General has received any complaint under this section or where facts are brought to the knowledge of the Attorney-General which satisfy the Attorney-General that there may be grounds for such a complaint, the AttorneyGeneral shall give the foreign lawyer a reasonable opportunity to make representations in writing, and if he is of the opinion that there is sufficient reason for doing so, the Attorney-General may — (a) cancel or suspend for such period as he may think fit the registration of the foreign lawyer to practise Singapore law; (b) censure the foreign lawyer; (c) order the foreign lawyer to pay a penalty not exceeding $5,000 or such other higher sum as may be prescribed; or (d) make such other order as he thinks fit.
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