Singapore Lawyer-Client Retainer Formation and Termination PDF

00:01 Hi, I\'m Eugene. Today we talk about formation and termination of a lawyer\'s retainer with a client. In other words, when do you actually start being the client\'s lawyer and when do you cease to do so? This is an important topic. If a professional relationship of lawyer and client is formed...

00:01 Hi, I\'m Eugene. Today we talk about formation and termination of a lawyer\'s retainer with a client. In other words, when do you actually start being the client\'s lawyer and when do you cease to do so? This is an important topic. If a professional relationship of lawyer and client is formed, you owe the client numerous professional duties under the Legal Profession Act. 00:30 professional conduct rules and various other laws and regulations governing the professional solicitor-client relationship. You owe the client a duty and a common law to take reasonable care in relation to your client\'s legal rights and duties. We will be covering all the specific duties owed to your client in subsequent lectures. 00:55 Furthermore, your duties to your client is paramount and subject only to your duty to the court as an officer of the court. This is set out in Rule 4B of the Legal Professional Conduct Rules 2015. It reads as follows, A legal practitioner\'s duty to the legal practitioner\'s client is subject only to the legal practitioner\'s duty to the court and must at all times be fulfilled in a manner that upholds the standing 01:25 and integrity of the Singapore legal system and the legal profession in Singapore. So, under what circumstances will a person be considered in law to be a client? 01:43 Section 2.1 of the Legal Profession Act, the interpretation provisions, provides some guidance. The provisions define clients to include a. In relation to contentious business, in other words, in a dispute or in litigation, any person who, as a principal, or on behalf of another person retains or employs 02:11 or is about to retain or employ a solicitor, and any person who is or may be liable to pay a solicitor\'s law corporations or a limited liability law partnerships. 02:27 and b. in relation to non-contentious business, for instance, corporate transactional work, any person who, as principal or on behalf of another, or as a trustee, executor or administrator, or in any other capacity, has power, expressed or implied, to retain or employ and retains or employs. 02:55 or is about to retain or employ a solicitor, and any person for the time being liable to pay a solicitor or a law corporation for his or its services any cost. It is worth noting that this statutory definition of who can be considered to be a client is rather wide. Thus, in relation to contentious business, 03:22 A person can be considered to be a client if he retains or is about to retain a lawyer. Furthermore, the person can be considered to be a client if he is liable or may be liable to pay the lawyer\'s costs. This is important. This means that you, as the lawyer, may begin to owe persons duties even before they formally engage you as lawyer. 03:51 For instance, you may be consulted by a walk-in member of the public for a second opinion on a legal problem that he is facing. Even though you may not eventually be engaged by the person as a lawyer, you still owe the person a duty to take reasonable care when advising him. 04:13 The broad circumstances under which a person may be considered to be a lawyer\'s client can also be seen in the doctrine of implied retainers. An implied retainer may arise where despite there being no formal agreement for a lawyer to act for a client in a particular matter, the party\'s conduct are such that a person may properly be regarded as a lawyer acting in his interests. The first case that we are going to look at 04:42 is the case of Law Society and Ahmad Khalis bin Abdul Ghani. In this case, the lawyer was instructed by one Rasid. Rasid was one of a number of siblings. The family was huge, eight or nine siblings, to make the industry court application for Rasid to be the sole administrator of the estate of his father, who had died of interstate. 05:11 More significant, however, is what the lawyer did with the surviving beneficiaries of the estate who did not formally instruct the lawyer. So to recap, Rashid appointed the lawyer. The other beneficiaries did not appoint the lawyer specifically. The lawyer, however, met with all of them. He was introduced as a friend of Rashid, who was a lawyer there to help all of them, to help the family in relation to the house. 05:42 Some of the beneficiaries expressed certain misgivings about Rasid becoming the sole administrator of their estate and asked whether they could appoint a co-administrator. The lawyer reassured them that Rasid, as the sole administrator, would not be able to deal with the property without their authorization. The lawyer also told them that they did not have to sign a document renouncing their claim to be co-administrators. 06:11 But as it turned out, they did in fact sign the documents. The issue arose as to whether the lawyer owed other surviving beneficiaries a duty to act in their best interests. Remember, Rashid was the only person who instructed the lawyer. However, all the other family members, all the other beneficiaries showed up with Rashid at this meeting and appeared to be relying on legal advice provided by the lawyer. 06:39 The court of three judges who heard the matter had no hesitation in holding that the lawyers owed duty to the other surviving beneficiaries who had attended the meeting. In summary, the court held that as the lawyer, by his own conduct, gave the other beneficiaries that he was looking after and protecting and acting in their interests, an implied retainer arose as a result. 07:07 and the lawyer was held to over the other beneficiaries duties as if the other beneficiaries had formally engaged him. 07:15 The Court endorsed the following rule as to when an implied retainer would arise. Court held that a retainer may be implied where on an objective consideration of all the circumstances, an intention to enter into such a contractual relationship ought fairly and properly to be imputed to all the parties. The implication would have to be so clear that the Solicitor ought to have appreciated it. 07:43 Circumstances to be taken into account might include where appropriate, who is paying the bill, who is providing instructions, and to whether a contractual relationship existed between the parties in the past. More recently, in the case of Anwar Patrick Adrian and Ng Cheong Hwee LLC, a court of appeal found that an implied retainer arose where a lawyer had signed off an official document 08:13 correctness as solicitous for the mortgage odds. The significance of this act was set out by the Court of Appeal in paragraphs 58 and 59 of the judgment. 08:26 What the court held was that from the perspective of the lawyer, Mr. Irm, who was a seasoned lawyer, he must be taken to have known about the importance of signing the certificate of correctness for the purposes of the mortgage. From an objective standpoint, he must have thought that he had the authority to act for the appellants and that he was their agent. In fact, he was their solicitor for the mortgage. 08:54 there is no other way of characterizing it. He may, in his own mind, have thought that he was their solicitor for the mortgage only because he was advising one of the parties on the broader transaction, but that does not detract from the fact that he must have held the view that he was officially their appellant\'s solicitor for the mortgage. From the perspective of the clients, the appellants would also have legitimately considered Mr Ng to be their solicitors. 09:23 This was not promised solely on his signing off as their Solicitor on the Certificate of Correctness. More than that, they knew that he was involved in the execution of this particular document. He was the only legally trained person on their side, that is, on the side of Mr Agus and the other appellants involved in the execution. And the other side had an independent Solicitor representing them. 09:50 This was a mortgage transaction that was part of a larger commercial transaction that had legal implications, which therefore required legal expertise. Based on how the negotiations proceeded and looking at its totality, the parents must have thought, at any rate, when titled to think, that Mr. Irm was acting for them. He was the one who was helping them through this transaction. Aside from an implied retainer, 10:19 Judges of care under common law may be entitled, may be held to be owed by a lawyer to third parties who are not formally the clients of the lawyer. 10:33 In AAL and others versus Chiao, Yue and Associates and another, the lawyer was instructed by clients to draft a will. However, as a result of the lawyers negligence, the will was defective as it was executed only in the presence of one witness. As a result, when the client died, his estate fell to be distributed according to the rules of infancy. 11:03 which resulted in various parties, including the client\'s grandchildren, not being entitled to share in the client\'s estate as intended by the client. The High Court, following the English authority of White and Jones, had no difficulty in finding lawyer owed the numerous intended beneficiaries duties of care under common law. In the result, the Court ordered the lawyer to compensate the intended beneficiaries for the entire 11:31 or \$719,000, which they were supposed to inherit had the will be correctly executed and witnessed. In Anwar Patrick Adrian, the Court of Appeals similarly held that the lawyer there owed duties of care and common law to the plaintiffs, and were liable to compensate the plaintiffs for their loss, despite the lawyer not being formally engaged as the plaintiff\'s lawyer. 11:58 We now turn to the issue of accepting instructions. 12:04 Extra caution must be exercised when a client suffers from any mental affirmation, for example when preparing a will for a client who appears mentally unwell, and or witnessing the execution of a will of a client who similarly appears to have a mental condition. 12:28 You can read the cases set out in this slide in greater detail, but the leading case is that of Chi Moulin Muriel and Chi Carlene Carolyn. In particular, I would like to draw your attention to paragraph 60 of the case where the Court of Appeal held. In our view, this case demonstrates that solicitors who undertake the task of preparing wills and are witnessing the execution of wills must take the necessary precautions 12:58 or steps in order to fulfil their duties to their clients. The precautions are not complicated, nor are they time-consuming. In any case, as solicitors, they must do what is required, however complicated or difficult the task may be. The central task is to ensure that the terms of the will reflect the wishes of the test data. How this is done depends on the circumstances of each case. In every case, 13:27 The solicitor should be cautious about taking instructions from any person who is to be named as a beneficiary in the will. If a testator is known to be suffering from any mental infirmity, a doctor should be called to certify her mental capacity before she is allowed to sign the will to ensure that such a testator fully understands the will. Furthermore, the solicitor should ask the appropriate questions. 13:55 to ascertain the testator\'s capacity to understand the contents of the will. The testator should be asked a simpler question as to whether he or she is making a will for the first time, or whether he or she had made a will previously. In the latter case, the solicitor should ask whether the testator knows that he or she is revoking the existing will. These questions may be formulaic, but they are necessary to avoid cases such as this. 14:25 Finally, as a matter of good professional practice, if not professional prudence, the solicitor should make a contemporary written record of his or her attendances on the test data so that he or she would be able to recall exactly what had transpired during the meetings. 14:46 Now we move to the scope of the lawyer\'s authority under a retainer. 14:54 It is important for you to ensure that you do, in fact, have authority to act for a party in a particular matter. In particular, you should always ensure this before filing any Notice of Appointment of Solicitors or Notice of Change of Solicitors informing the court that you are now on record as the client\'s solicitor. The steps you should take include verifying the client\'s identity, that is, 15:21 taking copies of the client\'s NRIC or other identity documents, having the client sign a written confirmation that you have authority to act, that is, a warrant to act, setting up the scope of your authority to act in writing, for instance, specifying that you have the client\'s authority to act in a particular suit or originating summons. This can be set up in a letter of engagement. You need to be sure as to who you are acting for. 15:50 In the case of a corporate dispute, are you acting for the company as instructed by the board of directors, or are you instead acting for one member of the board in a personal capacity? If a director proposes to instruct you to act on behalf of the company, you need to question if one director, in fact, has authority to give such instructions, or should you insist on the majority of the board? 16:19 giving you a warrant to act. Bear in mind also there may be cases where the board cannot legitimately appoint solicitors as the solicited law. You will then have to look for other ways in which the directors, shareholders and or the company\'s interests can be looked after. At times when a serious query arises as to whether you do or do not have the authority to act for a party. 16:45 The lawyers on the other side may request or demand that you disclose your warrant to act for your client. 16:52 Failure to disclose a duly executed warrant upon receiving such a request may result in serious consequences to you. You can find a sample letter of engagement from the Law Society\'s website. There are serious consequences for purporting to act without authority from client. These include civil liability for breach of warrant of authority, liability for wasted cost, 17:21 as well as disciplinary action, which may under certain specs result in punishments as serious as being struck off the roast or being suspended. We now turn to the termination of a lawyer\'s retainer. Under what circumstances can a client terminate the retainer? Under what circumstances can a solicitor withdraw from acting for a client? What are the duties incumbent upon a solicitor upon termination? 17:50 or so is this withdrawal from acting upon a client. 17:55 As far as the client is concerned, the client is entitled at any time for any reason to terminate the retainer and to change lawyers. There are two grounds on which a lawyer must withdraw from representing a client. This is set out in Rule 26.4 of the Professional Conduct Rules. You can, at your own time, read them carefully. 18:17 A lawyer owes a former client various duties in the cause of withdrawing from representing the client. These are set out in Rule 26.6 of the Professional Conduct Rules. They are that the lawyer must give a reasonable notice of withdrawal, the lawyer must give the client a reasonable amount of time to engage another lawyer, the lawyer must cooperate with the client\'s new lawyer, and the client must abide by the client\'s decision on whether to appoint another lawyer. 18:50 More details on what a lawyer must do upon withdrawing from representing a client can be found in the articles which we just set out at the slide. This is the end of the topic of formation and termination of retainer. Thank you. B24 EPR - II\. Relationship with the client - \(1) Formation of **[Retainer]** - Who is a \"client\": section 2(1) LPA; Law Society of Singapore v Uthayasurian Sidambaram \[2009\] 4 SLR(R) 674 at \[39\] to \[44\] - **[ Implied retainer:]** - Law Society of Singapore v Ahmad Khalis bin Abdul Ghani \[2006\] 4 SLR(R) 308 at \[64\]-\[73\]; **[Factors considered for finding of implied retainer]** - Anwar Patrick Adrian v Ng Chong & Hue LLC \[2014\] 3 SLR 761 at \[49\]-\[61\]; - c.f. Law Society of Singapore v Lee Suet Fern \[2020\] SGHC 255 at \[57\]-\[69\] - Position when instructed by agent: Fong Maun Yee v Yoong Weng Ho Robert \[1997\] 1 SLR(R) 751 - PD 7.4.2 - Reservation of Rights in Warrant to Act or Letter of Engagement; - PD 7.1.2 - Limitation of Civil Liability; - s11 UCTA - - PD 7.4.3 - Warrant to Act, Letter of Engagement and Referrals from Third Parties \[PD 7.4.3 will be non-examinable for the purposes of Part B EPR 2024\]. - \(2) **[Honesty,]** competence and diligence (Rule 5 PCR) - Law Society of Singapore v. K Jayakumar Naidu \[2012\] 4 SLR 1232 at \[85\]- \[91\] **[- pressures of practice is not an excused]** - - - - - Law Society of Singapore v Ng Bock Hoh Dixon \[2011\] SGHC 242 at \[31\]-\[35\] - **[Consequence for dishonesty is striking off]** - Lie Hendri Rusli v Wong Tan and Molly Lim (a firm) \[2004\] 4 SLR(R) 594 at \[42\]-\[45\] - **[Soliciotr\'s duty depends on the scope of the retainer]** - - - - Law Society of Singapore v Chiong Chin May Selena \[2013\] SGHC 5 - **[High level of diligence regardless of quantum of fee charged]** - - Law Society of Singapore v Udeh Kumar s/o Sethuraju \[2017\] SGHC 141 at \[25\]-\[30\] and \[102\]-\[109\] **[Dishonesty = striking off]** - - Law Society of Singapore v Chia Choon Yang \[2018\] SGHC 174 at \[44\]-\[55\] - **[Dishonesty = Struck off;]** **[Factors considered for striking off]** - Law Society of Singapore v Jaya Anil Kumar \[2019\] SGHC 12 at \[4\]-\[7\] - **[inexperience is not an excuse]** - - Law Society of Singapore v Yong Wei Kuen Paul \[2020\] SGHC 66 at \[8\]-\[16\] **[Struck off despite not benefitting from deception]** - Loh Der Ming Andrew v Koh Tien Hua \[2022\] SGHC 84 at \[110\]-\[120\] - **[Past erraneous conduct will be considered aggravating factor]** - Law Society of Singapore v Mohammed Lutfi bin Hussin \[2022\] SGHC 182 at \[23\], \[33\]-\[34\] - **[The court will not accept that there is a spectrum of dishonesty]** - Law Society of Singapore v Ooi Oon Tat \[2022\] SGHC 185 at \[2\]-\[4\] - **[Breach of solicitor\'s duties resulted in client\'s claim being time-barred]** - Law Society of Singapore v Ezekiel Peter Latimer \[2024\] SGHC 90 at \[36\]-\[50\] - **[Solicitor cannot depend on others to verify as an excuse]** - \(3) **[Confidentiality]** (Rule 6 PCR) - Whether information is confidential in nature: Law Society of Singapore v Ravi S/O Madasamy \[2015\] 3 SLR 1187 at \[33\] **[- The information disclosed must be confidential, and if so, client\'s prior consent must be obtained.]** PD 9.1.1 - Request for Information - PD 9.1.3 - Professional Secrecy & Privilege - **[Privilege last forever, unless waived by client]** - \(4) **[Conflict]**, or potential conflict, between interests of **[2 or more clients]** (**[Rule 20 PCR]**) - Preliminary considerations for legal practitioner - Scenario 1: Before the lawyer takes on the matter (**[Rule 20(2), (3), (4) and (7)]**) - Rule 20 (3)(b) Rule 20 (4) and (6) - Scenario 2: When the lawyer is already acting for the relevant parties (**[Rule 20 (5) and (6)]**) **[Exception]** to **[Rule 20]** under **[Rule 20(7)]** - Question: Are the interests of the relevant parties adequately protected? - Multiple clients - Law Society of Singapore v Ezekiel Peter Latimer \[2019\] SGHC 92 - **[unflinching loyalty]** - **[Multiple clients]**: Lie Hendri Rusli v Wong Tan and Molly Lim (a firm) \[2004\] 4 SLR(R) 594 at \[36\] and \[48\]-\[50\]; - Law Society of Singapore v Uthayasurian Sidambaram \[2009\] 4 SLR(R) 674 at \[34\]-\[53\]; - - Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin \[2015\] SGCA 36 at \[63\]-\[80\]; -that transaction will be regarded as suspect and will be liable to be **[set aside]** - Cases involving **[implied retainers]** and/or the duty to ensure that non-clients are not under impression that legal practitioner is protecting their interests: - Law Society of Singapore v Ahmad Khalis bin Abdul Ghani \[2006\] 4 SLR(R) 308 at \[74\] - **[Interest of one client should not be prioritised over other clients]** - Law Society of Singapore v Ganesan Krishnan \[2003\] 2 SLR(R) 251 - **[The test is that of acting for a single client applied to each of all clients]** - - PD 7.2.1 - Acting Against a Public Authority - PD 7.2.2 - Acting for Both Applicant Creditors and Provisional Liquidator - PD 7.2.3 - Acting for Both Complainant and Accused - PD 7.2.4 - Acting for Both Debenture Holder of a Company and Receiver Appointed by the Holder - **[Only can act for both if the receiver has received independent legal advise.]** - PD 7.2.5 - Conflict of Interest - Acting **[Against Former Client in Litigation Pertaining to Same Transaction]** - PD 7.2.6 - Conflict of Interest - Mortgagor/ Mortgagee - \(5) Conflict, or potential conflict, between interests of **[current client]** and **[former client]** (**[Rule 21 PCR]**) - Harsha Rajkumar Mirpuri (Mrs) nee Subita Shewakram Samtani v Shanti Shewakram Samtani Mrs Shanti Haresh Chugani \[2018\] SGHC 155 the **[Bolkiah principle (prospective former client)]** - Lim Oon Kuin v Rajah & Tann Singapore LLP \[2022\] SGCA 29 - **[There needs to be unqualified perception of fairness in the eyes of the public]** - \(6) Conflict, or potential conflict, between interests of client and **[interests of legal practitioner or law practice]**, in general (**[Rule 22 PCR]**) - **[Actual harm to client is not required for this provision to apply]** - Law Society of Singapore v Loh Yong Sen - Then Khek Khoon and another v Arjun Permanand Samtani and another \[2012\] 2 SLR 451 - **[Duty applies to the entire firm]** - Law Society of Singapore v Udeh Kumar s/o Sethuraju \[2013\] 3 SLR 875 - **[Cannot turn a wilful blind eye]** - Law Society of Singapore v Tan Phuay Khiang \[2007\] 3 SLR(R) 477 - **[Failure to make inquiries]** - Ho Kon Kim v Betsy Lim \[2001\] SGHC 75; \[2001\] SGCA 64 at \[63\] - **[Solicitor cannot have personal interest in the case]** - Law Society of Singapore v Singham Dennis Mahendran \[2001\] 1 SLR(R) 1 - **[fell in love with client and convinced her not to reconcil with husband]** - Law Society of Singapore v Govindan Balan Nair \[2020\] SGHC 174 **There does NOT need to be any harm actually caused before this provision is contravened** - - - Law Society of Singapore v Tan Chun Chuen Malcolm \[2020\] SGHC 166 - **[Cannot furthered his own interests under false pretenses]** - - GN 7.4.2 - Providing Welfare Assistance to Clients. - **[Reserve the right to withdraw]** - - \(7) Conflict of interest in family proceedings (Rule 15B PCR) \(8) Prohibited **[borrowing]** transactions (**[Rule 23 PCR]**) - Law Society of Singapore v Yap Bock Heng Christopher \[2014\] 4 SLR 877 - **[Cannot borrow money from client]** - Wee Soon Kim Anthony v Law Society of Singapore \[2007\] 1 SLR(R) 482 - **[cannot take loans from client even though no undue influence is found]** - Law Society of Singapore v Thirumurthy Ayernaar Pambayan \[2015\] SGDT 2 - **[It is irrelevant both as a matter of liability and as a mitigating factor that the Complainant suffered no loss as a result of the two prohibited borrowing transactions.]** Law Society of Singapore v Chia Chwee Imm Helen \[2022\] SGHC 214 - **[the Court will not give weight to the mental health issues of the errant solicitor in considering stirking off]** - \(9) **[Purchases]** from client (**[Rule 24 PCR]**) - \(10) **[Gifts]** from client (**[Rule 25 PCR]**) - Law Society of Singapore v Wan Hui Hong James \[2013\] 3 SLR 221 - **[must decline the gift in the absence of independent advice]** - Law Society of Singapore v Manjit Singh s/o Kirpal Singh and another \[2015\] 3 SLR 829 - **[Cannot accept under the pretext of \"safe keeping\"; Will be liable even if the monies returned]** - LSS v Govindan Balan Nair \[2020\] 5 SLR 988 - **[Full and frank disclosure + Independent advice + consent to act]** - LSS v Tan Chun Chuen Malcolm \[2020\] 5 SLR 946 - **[Cannot enter into business transactions with clients]** - Law Society of Singapore v Lee Suet Fern \[2020\] SGHC 255 - **[There cannot be any waiver of conflict of interest after the fact, where the client was not fully appraised of the facts]** - LSS v Ong Teck Ghee \[2014\] SGDT 7 - **[Where the client decline to receive independent legal advice despite being advised to do so, this cannot operate as an exception. Only a certificate from third party solicitor will suffice]** - \(11) Completion of retainer and withdrawal from representation (Rule 26 PCR) - Chew Kim Kee v. Kertar & Co \[2004\] SGHC 95 - A solicitor owes duties of honesty, competence and diligence to his client and [must complete] the work pursuant to the client's instructions until the termination of the retainer Alfons Tanumihardja v. Thio Su Mien \[2005\] 2 SLR(R) 445 **Closing of a client file does not, in itself, terminate the solicitor-client relationship** Law Society of Singapore v Chiong Chin May Selena \[2013\] SGHC 5 Solicitors are expected to uphold a certain level of diligence and competence even if a low fee is charged PD 7.3.1 - Copies of Documents - PD 7.3.4 - Transfer of Clients\' Monies on Dissolution - - - GN 7.3.1 - Guidelines for Handling of Clients' Files When a Solicitor Leaves a Law Practice to Practise in Another Law Practice