Legal Ethics Lecture Notes PDF

00:00 Hello, my name is Pradeep Pillai and I will be speaking to you on Publicity and Prohibition Against Touting, which is Topic 10 of Ethics and Professional Responsibility. 00:16 In this lecture, we will be focusing on three topics. Publicity. 00:23 First, second, touting and referrals, and...

00:00 Hello, my name is Pradeep Pillai and I will be speaking to you on Publicity and Prohibition Against Touting, which is Topic 10 of Ethics and Professional Responsibility. 00:16 In this lecture, we will be focusing on three topics. Publicity. 00:23 First, second, touting and referrals, and third, prohibited business, trade or calling. 00:32 Rule 37 of the Legal Profession Professional Conduct Rules 2050, which I shall refer to as PCR, states that a legal practitioner must not engage in publicity or procure any work or engagement for himself or herself, the law practice in which he or she practices or any other person in circumstances which affect the dignity and standing of the legal profession. 01:01 The first subtopic is publicity, and the governing rule is in Rule 41 of the PCR. The general principles in relation to publicity are stated therein, and essentially it says that subject to these rules, a legal practitioner may a. publicise the legal practitioner\'s practice or the practice of a law practice of which the legal practitioner is a director, 01:31 allow the employees of the law practice to do so. What must be noted is that this rule is phrased positively. As such, publicity is permitted as long as it complies with the rules. Such an approach recognises that reasonable and appropriate publicity is necessary and consistent with the interests of the profession and the public. 01:58 In the interest of legitimate publicity and of providing helpful information to the public, the advocate and solicitor is entitled to take reasonable and appropriate steps, consistent with the dignity of his professional standing, to advertise his position and or the law practice. If there is any doubt whatsoever about the propriety of the action which an advocate and solicitor intends to take, he should ask for guidance from the Law Society. 02:31 The general responsibilities of advocates and solicitors are set out under Rule 42 of the PCR. Rule 42.1 states that every advocate and solicitor is responsible for ensuring that any publicity relating to his practice complies with the rules, whether that publicity is by the legal practitioner or by any other person on the legal practitioner\'s behalf. 02:59 states that an advocate and solicitor who becomes aware of any improper publicity is obliged to procure the rectification or withdrawal of the publicity and to prevent the recurrence of the impropriety. 03:14 42.3 of the PCR states that if the council of the Law Society becomes aware that any rule concerning publicity has been breached, it may, having properly investigated the matter, order the legal practitioner or law practice to alter, withdraw, remove or discontinue the publicity or cause the publicity to be altered, withdrawn, removed or discontinued. Lastly, 42.4 03:43 which states that law practice must not use the moral bearings of the law society for the purpose of publicity. 03:55 Now, with regards to publicity in Singapore, the rules distinguish between publicity of a law practice in Singapore and the publicity of the law practice abroad. When a legal practitioner publicizes the legal practitioner\'s practice or the practice of a law practice of which the legal practitioner is a director, a partner, or an employee, the legal practitioner must ensure that a. Any claim to expertise or specialization. 04:24 can be justified. b. The publicity does not make any direct or indirect mention of Roman numeral 1, any past case in which or any client from whom the legal practitioner, the law practice or any member of the law practice have acted, if the provision of any such information will result in a breach of any duty of confidentiality owed to a client or former client of the legal practitioner or law practice or 04:54 Roman numeral 2, the success rate of the legal practitioner, the law practice, or any member of the law practice. And c. the publicity does not make any comparison or criticism in relation to the fees charged or the quality of services provided by any other legal practitioner or law practice. 05:18 With respect to Rule 43-2, with regard to justifying a claim to expertise or specialisation pursuant to Parag A, the following criteria are to be taken into account. Academic qualifications, experience, proportion of working time involved, level of success achieved, complexity of law and practice, 05:46 significance of the matters involving the legal practitioner or the law practice for which the legal practitioner is a director, a partner or an employee. Assessment by peers. 05:59 Rule 43.3 refers to a law practitioner who practised a law practice and is appointed to the judiciary. Rule 43.4 states that the rules do not permit the doing of anything which may reasonably be regarded as touting. 06:18 I now come to rule 44 of the PCR, which refers to misleading, deceptive, inaccurate, or false publicity. 06:30 Under this rule, it basically states the legal practitioner must not publicize the legal practitioner\'s practice or the practice, the law practice for which the legal practitioner is a director, partner or employee in a manner which a. is likely to diminish public confidence in the legal profession or to otherwise bring the legal profession into disrepute b. is 06:58 or unbefitting the dignity of the legal profession, or c. The counsel may determine to be an undesirable manner of publicizing the practice of a legal practitioner or law practice. And in respect of these rules, publicity is deemed to be misleading, deceptive, inaccurate or false if a. It contains a material misrepresentation. It omits the state of material fact. It contains any information which cannot be verified. 07:28 or it is likely to create an unjustified expectation about the results that can be achieved by the legal practitioner or the law practice of which the legal practitioner is a director, a partner or an employee. 07:46 Now come to Rule 45 of the PCR, Contribution to Good Causes. 07:53 Now, an advocate or solicitor is entitled to contribute to a good cause as such conduct is in the public interest. Good cause includes any registered charity and any other benevolent cause or cause concerned with the promotion of education sports or the arts. The recipient of the benefit may publicly acknowledge the advocate and solicitor and or the law practice. However, the circumstances must not be abused. 08:22 or manipulated for the purpose of gaining unfair or otherwise improper publicity. Accordingly, the advocate and solicitor or law practice is responsible for ensuring that any public acknowledgement of the contribution does not state any information pertaining to the advocate and solicitor or law practice except a. In the case of a contribution made by a legal practitioner, legal practitioner\'s name, the fact the legal practitioner is a legal practitioner 08:52 and the name of the law practice of which the legal practitioner is a director partner or an employee. And b, in the case of a contribution made by a law practice, the name of the law practice. 09:06 I now come to Rule 47, which refers to free legal services. 09:14 Just like a case of contributing to good causes, an advocate and solicitor is entitled and encouraged to serve the community by offering free legal advice to those who are unable to afford such legal services. Indeed, it is the advocate and solicitor\'s obligation to facilitate access to justice by members of the public. However, here again, the advocate and solicitor must not abuse his role in providing free legal advice by attracting unfair or imp\... 09:43 proper publicity. To avoid any uncertainty about his obligation, he must not a. Distribute any of the legal practitioner\'s business cards or brochures, leaflets or pamphlets relating to the law practice, which he is a director, partner or employee, or b. Act for any person to whom the legal practitioner has given such free legal advice, unless the legal practitioner acts for that person in a pro bono capacity. 10:16 Now rule 46 of the PCR refers to third party publicity. 10:22 A legal practitioner may allow his practice, of which he is a director, partner, or employee. And a law practice may allow its practice to be publicized in or in conjunction with the publicity of any third party, whether or not the party is a client of the legal practitioner or law practice. For example, a law practitioner\'s website may now be hyperlinked to a client\'s or a third party\'s website. 10:51 or a law firm or a law corporation does participate in the publicity of a client of the third party, he or it must comply with the rules governing publicity in Singapore, and he or it must not engage in conduct which may reasonably be regarded as touting. 11:13 I now come to publicity outside Singapore, and this is governed by Rule 48 of the PCR. What must be noted is that the restrictions under Rules 43-47, which apply to publicity, do not extend beyond Singapore. An advocate in Solicitor Mead publicised his practice or the law practice in another country subject to the requirement that publicity is not conducted in a manner that is contrary to the laws of that country. 11:40 Any issue as to whether publicity has been conducted in Singapore or another country is determined by the presumption that it is deemed to have been conducted in a jurisdiction in which it is reasonably expected to be received or accessible in the normal course of events. 11:58 Accordingly, it is quite possible for publicity to be received or to be accessible in Singapore and other jurisdictions concurrently. In these circumstances, the restrictions governing publicity in Singapore would apply. 12:17 I move on to the next sub-topic which is touting and referrals, and this is governed by Rule 39 of the PCR. Rule 39.1 essentially states that a legal practitioner must not tout for business or do anything which is likely to lead to a reasonable inference that the thing was done for the purpose of touting. 12:45 Rule 39.2 of the PCR covers referral arrangements. Where there is reason to believe that a client is referred to a legal practitioner by any other person, the legal practitioner or law practice A, must maintain the independence and integrity of the legal profession by not permitting the referral to undermine the professional independence of the legal practitioner or law practice. 13:12 must not reward the referral by payment of any commission or other form of consideration. c. Must not allow the referral to affect in any way the advice given to the client. d. Must advise the client impartially and independently. e. Must ensure that any wish to avoid offending the referral does not affect in any way the advice given to the client. f. Must ensure that the referral 13:39 does not in any way influence any decision taken in relation to the nature, style, or extent of the practice of the legal practitioner or law practice, and g. must communicate directly with the client to obtain or confirm instructions when providing advice and at all the appropriate stages of the transaction. These conditions emphasize that the referral arrangement must not offend any of the advocate and solicitor\'s duties to uphold the interests of justice. 14:09 to act honestly towards and providing diligent and competent service to the client, and to uphold the standing of the legal profession. For example, if a debt collection agency refers clients to a law practice for the recovery of their debts, the law practice must not permit the referrer to dictate the steps to be taken by the advocate and solicitor in the recovery of the debts. The law practice must also not accept instructions 14:37 regarding the progress of a case by the referrer without the involvement of the client. Even if the referrer produces a letter of authority on the client\'s behalf, the advocate and solicitor consent has a duty to verify the authority of the agent to give instructions. 14:58 Rule 40 of the PCR sets out certain requirements for agreements for referrals. 15:08 An agreement for referral must be expressed in writing, containing the terms as set out under subparagraph one. If the referral breaches any of these terms or if there is any reason to believe the legal practitioner or law practice is in breach, the advocate and solicitor or law practice must terminate that agreement. Where the legal practitioner or law practice has terminated an agreement, the legal practitioner or law practice may continue to act in matters 15:38 for which the legal practitioner or law practice was instructed prior to the termination, but must not accept any further referrals from the referral. 15:52 This is a list of some of the relevant cases which should be reviewed for the purpose of these topics under Topic 10. Case of Law Society v. Michael Chong refers to the procuring of convincing business by a promise of payment of referral fees to real estate agents. 16:17 Law Society vs Udekumar, the responsibility to communicate directly with the client when the client is referred by a third party. Law Society of Singapore vs Lee Cheng Ho, refers to the fee sharing arrangement with an employee. And lastly, Law Society of Singapore vs Tan Bak Chye, procuring convincing work by offering monetary compensation to referrals. There are four more cases to review. 16:46 involving touting and referrals. I move on to the last subtopic, prohibited business trade or college. Essentially this is set out in Rule 38 of the PCR. Now, an advocate and solicitor may accept an appointment or be occupied or engaged in a capacity unrelated to legal practice if such appointment, occupation or engagement is permissible according to applicable laws, rules and regulations. 17:14 For example, established advocates and solicitors are often appointed as directors of their clients\' companies. 17:24 Nevertheless, an advocate and solicitor who is occupied or engaged in a capacity unrelated to legal practice may nevertheless be disciplined for improper conduct because of that occupation or engagement. The famous case in relation to this, and I would state the most blatant example of being engaged in a profession unrelated to legal practice, is this case, 17:53 Advocate 1964, Volume 1, MLJ, page 1. 18:00 In terms of appointments and occupations, where the non-legal occupation or engagement of the advocate and solicitor would conflict with his duty to his client, he must refrain from taking up the occupation or engagement. For example, an advocate and solicitor may not act as a housing agent in a conveyancing transaction because of the conflict between his interest and that of his client. A specific prohibition states that the advocate and solicitor must not 18:29 any executive appointment in any company. This restriction applies regardless of the nature of the appointment, the underlying assumption being that any executive appointment would be adverse to the role of the advocate and solicitor. B24 EPR - VI\. Publicity and prohibition against touting - \(1) Publicity (Rules 37, 41, 42, 43, 44, 45, 46, 47, 48 and 49 PCR) - Rule 37 - **[Touting and Publicity]** - **[Did the act affect the standing of the profession]**? - Rule 41 - **[Permitted Publicity]** - Rule 42(3) - General responsibilities relating to publicity; **[obligation to retract]** - Rule 43 (b)(ii) - General requirements relating to publicity; **[Success rate]** - Rule 44 - Publicity should not be misleading - Rule 45 - Contribution to good causes - Rule 46 - Third party Publicity - Rule 47 - Free legal services - Ruel 48 - Publicity outside Singapore - **[cannot break foreign laws]** - PD 6.2.1 - Advertisement and Media Publicity - - - - - PD 6.2.4 - Publicity by Legal Practitioners Through Public Appearances and Contributions to Publications - - - - - - PD 7.4.1 - Correspondences to Potential Clients Where Legal Practitioner is Permitted to Act for More Than One Client in a Transaction - - - PD 6.1.2 - Referrals/hyperlinking of websites - PD 6.2.3 - Identification of Legal Practitioners or Law Practices - GN 6.1.1 - Ethics and Information Technology 1. 2. 3. 4. 5. a. b. c. d. B. 6. 7. 8. C. i. 9. 10. 11. 12. 13. 14. 15. ii. 16. 17. 18. 19. 20. 21. iii. 22. 23. D. i. 24. 25. 26. ii. 27. 28. iii. 29. 30. 31. 32. 33. 34. 35. 36. - \(2) Touting and Referrals (Rules 39 and 40 PCR) - Rule 39 - (1) Touting and (2)**[Referal]** - Rule 40 - **[Agreement for referrals]** - Law Society of Singapore v Chong Wai Yen Michael \[2012\] 2 SLR 113 - Law Society of Singapore v Udeh Kumar s/o Sethuraju \[2013\] 3 SLR 875 - Law Society of Singapore v Lee Cheong Hoh \[2001\] 1 SLR(R) 197 - Law Society of Singapore v Tan Buck Chye \[2007\] 1 SLR(R) 581 - The Law Society of Singapore v Lau See-Jin Jeffrey \[1999\] 1 SLR(R) 724 - Law Society of Singapore v Lillian Bay Puay Joo \[2008\] 2 SLR(R) 316; - Law Society of Singapore v Tan Guat Neo Phyllis \[2008\] 2 SLR(R) 239 - The Law Society of Singapore v Yap Kok Kiong \[2006\] SGDSC 14 - Wong Keng Leong Rayney v Law Society of Singapore \[2006\] 4 SLR(R) 934 - Restrictions on procuration of work: LPA, s 83(2)(d)-(g) and LPA, s 78(1)(e) - \(3) Prohibited business, trade or calling (**[Rule 38]**) - Re An Advocate \[1964\] 1 MLJ 1 - C.f. Law Society of Singapore v Ong Teck Ghee \[2014\] SGDT 7 - Rule 34 - Executive appointments