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00:00 Hello, my name is Edmund Ng and I\'m a Director of Fullerton Law Chambers. This lecture touches on part four of your syllabus, under the main header of relationship with other legal practitioners and other persons. This is to be the first of two lectures on this topic, and we\'re covering sub...

00:00 Hello, my name is Edmund Ng and I\'m a Director of Fullerton Law Chambers. This lecture touches on part four of your syllabus, under the main header of relationship with other legal practitioners and other persons. This is to be the first of two lectures on this topic, and we\'re covering subtopics one, two and three of the main topic today. Subtopics four to six of the syllabus will be covered in a separate lecture. 00:29 Without further ado. 00:37 This part of the syllabus touches on the ethical responsibilities which advocates and solicitors owe to one another. In this lecture, we\'ll be looking at, first, the overarching duty of courtesy and fairness owed by one advocate and solider to another, and second, some examples of this duty as found in the Professional Conduct Rules and the relevant practice directions. I\'m at slide 3 now, and the applicable rules. Several important examples as to the duty of courtesy and fairness may be found at Rule 7. 01:07 and Rules 27 to 31 of the PCR 2015. These are not exhaustive as to the advocate and solicitor\'s duty of courtesy and fairness. The equivalent provisions in PCR 2010 are Rules 47, 48, 49, 51, and 52. To this, I would also add Rules 70, 71, 63, and 53 of PCR 2010. 01:34 The cross-reference to PCR-2010 is intended to assist you to better understand the judgments and commentaries dealing with the provisions of PCR-2010, the majority of which are still of relevance to the construction and interpretation and understanding of the PCR-2015. 01:54 Moving on to slide 4. I will leave you to go through the specific rules on your own. It is, however, important for me to highlight rule 7.2 of the PCR 2015 to you in this lecture. This is the primary source from which the duty of courtesy and fairness flows. It states, quite simply, that a legal practitioner must treat other legal practitioners with courtesy and fairness. Once you are able to understand the reasons for this rule, 02:21 be better able to appreciate the purpose and scope of the secondary rules highlighted in the earlier slide which are intended to govern conduct in specific circumstances. The equivalent provision in the PCR 2010 is Rule 47. 02:43 The rationale for the duty of courtesy and fairness has been variously stated in different publications and commentaries. The two clearer editions of this rationale are reproduced in slides 5 and 6. 03:05 Two propositions may be distilled from these passages. They are firstly, an advocate and solicitor is a member of an honourable profession and is an integral part of the court machinery. The way in which advocates and solicitors relate to one another therefore impacts directly on the public\'s perception and confidence in the administration of justice and the profession as a whole. Secondly, each advocate and solicitor owes a duty to act in his client\'s best interest. 03:34 A courteous and dignified relationship between one advocate and Solicitor and another allowed them to work better together to achieve the best interests of their respective clients. More importantly, it allows disputes between the parties to be resolved without unnecessary complications. Taking the analogy of a machine, if it was not well-oiled and there was constant friction between its constituent gears, you would agree that the machine would quite quickly come to a halt. And that is precisely 04:04 the duty of fairness and courtesy that we are speaking of today. 04:13 The guiding principles in Rules 7.1 and 27 of the PCR 2015 helpfully provide an elaboration as to the general scope and purpose of the primary rule in Rule 7.2. It is very important that you commit these principles to mind, first in your professional interactions with another advocate and solicitor, and two when applying or interpreting the specific rules found in PCR 2015 in particular contexts. 04:43 slides 7 to 9 which I will leave you to read on your own. I will now move on to slide 10. 04:58 At this point of the lecture, the question that may arise in many of your minds is this, that there must surely be some conflict between the advocate and solicitor\'s duty of courtesy and fairness to another, and his duty to do his utmost to further his client\'s interest. This is especially so in the adversarial process of litigation. Well, the short answer is that there is no such conflict at all. The Honourable Judicial Commissioner, Andrew Pang, as he then was, 05:28 eloquently addressed the issue in his decision in China Insurance and Liberty Insurance at paragraph 64. And he explained that, and I quote, although we operate within an adversarial system which by its very nature mandates counsel on each side advocating as persuasively and as fearlessly as possible, their arguments on behalf of their respective clients can, indeed, ought to be achieved within a framework of what 05:57 for want of a better term, I would classify as professional courtesy and common decency. Put in simpler terms, one can disagree and yet not be disagreeable. The clash of arguments is that it\'s supposed to result in the emergence of the light of truth, must not degenerate so that more heat than light is used. Look at in practical light, where there is the hopefully merely occasional descent into a less than agreeable situation. 06:26 Not only is the legal system in general solid by such unseemly conduct, but the court is also hindered in ascertaining what the true facts are, and hence in arriving at a fair and just decision. 06:44 So while the lawyer owes overriding duties to the court and its client, these duties do not operate to the exclusion of the duty of courtesy and fairness. Quite to the contrary, and as astutely opined by its owner, the duty of courtesy and fairness between practitioners play an important facilitative role in the practitioner fulfilling both duties. And now we come on to the division in Law Society of Singapore. 07:14 and Ahmad Khalis bin Abdul Ghani. And the same point was made in this decision at paragraph 40. In the Honorable Court opined, one major ideal underlying the practice of law is that even if especially under an adversarial system, council concern can join in legal combat and still display the nobility of the law. 07:44 You will find examples of conduct and breach of the duty of courtesy and fairness. In other decisions, some of which are listed in your slides, they are the Law Society of Singapore and Terence Tan Bien Chai and the Law Society of Singapore and Ravi, son of Madasami. In Terence Tan Bien Chai, the lawyer in question wrote a letter to another lawyer alleging that the letter was in contempt of court and had intentionally misled the court. 08:13 The letter also highlighted other alleged instances of deception on the part of the other lawyer. There was also an express threat that he would report the other lawyer to the Law Society if he was not finished with satisfactory explanations in his regard. The disciplinary tribunal took issue with the tone of the letter and also the express threat found in the letter. It held that in addition to there being a breach of the 08:40 provisions of the practice directions relating to offensive letters. The lawyers conduct was also a breach of the then Rule 47 of the 2010 PCR in respect of the duty of courtesy and fairness. The second decision, Law Society and M. Ravi. The respondent was by order of court suspended for practice until he submitted to a medical examination. 09:07 The Respondent then went on to make certain offensive remarks relating to the then President of the Law Society on the Respondent\'s Facebook page. The remarks included that the Respondent was of the view that Mr Thiew and his sister themselves required psychiatric treatment, and second, various other scurrilous and offensive remarks about Mr Thiew\'s other family members. The Law Society applied under Section 82 of the Legal Profession Act for leave 09:37 for a disciplinary tribunal to be appointed to investigate Mr. Rafi\'s conduct in relation to, amongst others, the Facebook post. And in hearing the matter, the Chief Justice opined, specifically in relation to the Facebook post issue, that the Law Society had made up a Prima Teh Shee case for leave under Section 82A, LPA. At paragraph 42 of the judgment, the court opined that, and I quote, even if the respondents 10:07 and even if he genuinely believed that the suspension was unjustified, he was certainly not justified in making the remarks that he did against Mr Thiew and his family. So this courteous conduct and unfair conduct by one advocate, the solicitor, is not to be encouraged. Having said that, however, the court will, in its analysis of the matter, also carefully discern the true substance of the infraction and weigh the gravity of the impugned conduct. And this appears to be the holding 10:35 in the slightly complicated facts of the High Court decision in Law Society of Singapore and KHR Kuma Naidu. In this case, the court found that the respondents conduct an A, neglecting to respond to another lawyer\'s letter to him, and B, proceeding on his earlier intended course of action despite the request of the other lawyer, made ostensibly for the benefit of the respondent\'s client, for him to hold his hand in the matter. Were not serious enough. 11:03 to attract sanction under the duty of courtesy and fairness. They called help instead, that the respondent had by the impugn conduct breached his duty to act in his client\'s best interest. I will leave you to read the whole of the decision yourself, but what is important in this decision is that not every act of alleged discurgency by one lawyer to another will come under the scrutiny of the duty of fairness and courtesy. I will now move on to slide 15. 11:41 Some specific manifestations of the overarching duty of courtesy and fairness may be found in the PCR 2015 provisions highlighted earlier, and in the relevant Law Society practice directions they include Rule 7.3, which mandates that there is to be no communication with represented clients without express approval unless it was not reasonably practicable, or such lack of communication would result in severe prejudice to its own client. 12:11 A lawyer may give a second opinion to represented clients, but must not improperly seek to influence the client to change lawyers. And Rule 7.6, a lawyer must honour every undertaking given to another lawyer. 12:27 Rule 7.9 Lawyers must accept a written representation from another lawyer that he has authority to act, unless there are good reasons to suggest otherwise. And Practice Direction 8.5.5, formerly paragraph 64 of the PDR2013. A lawyer must not obtain evidence of another lawyer\'s wrongdoing by entrapment or other illegal or improper means. And Rule 28. 12:55 a lawyer must not enter default judgement against a represented party without giving the other lawyer at least two working days\' notice. These rules are canvassed in slides 17 to 19, and I will emphasise that these rules are not exhaustive as to an advocate and solider\'s duty of courtesy and fairness. I\'ll leave you to read these rules for yourself. 13:23 We will now look at some of these earlier rules and practice directions in greater detail. Rule 7.3. It prohibits a lawyer from communicating with a represented client involved in the same matter unless the conditions set out in Rule 7.3.a to D have been satisfied. The rule is a strict one that extends to former clients. In this regard, you should review practice direction 8.3.1, which is formally\... 13:53 paragraph 36 of the PDR2013. Rule 7-4 allows for a lawyer to give a second opinion to represented clients with or without the knowledge of the client\'s lawyer. However, in giving a second opinion, the lawyer must not improperly seek to influence the client to change lawyers. Before giving such a second opinion, a lawyer must carefully consider whether he has sufficient facts to render such an opinion. It is also gross discuritacy for a lawyer to 14:21 on the advice given by another lawyer to the other lawyer\'s client. Even if the other lawyer\'s client is his friend, the lawyer may however suggest to his friend that he might wish to obtain another lawyer\'s advice on certain aspects of the case. Rule 7.6. A lawyer must honor every undertaking given to another lawyer. And Rule 7.7. A lawyer must not give an undertaking to another lawyer unless he believes it is necessary and he is certain that he is able to honor the undertaking. 14:51 If I can just elaborate, an undertaking by one lawyer to another is a solemn promise on which the latter may rely by making a concession or agreeing to a request or taking or not taking a certain step. The former must honour this undertaking in keeping with his duty to act in a professional and responsible manner towards his peers. See generally the decision in law society in Ajahn Chotrani, Bisham, on the gravity of the breach of one lawyer\'s\... 15:20 agreement with another. See also the more recent decision in Oto Ventures and ECYT Law LLC on the nature of a solicitor\'s undertaking. On the facts, the court held that a solicitor\'s undertaking is a personal undertaking by the solicitor. It is not an obligation undertaken on behalf of his client. This also means that a solicitor cannot cite his client\'s instructions or the absence thereof. 15:51 as an excuse for not honouring this undertaking. I\'ll move on to slide 20. 16:00 Rule 7A, a lawyer may ask another lawyer if he has authority to act for a person. Under Rule 7N, a lawyer must accept a written representation from the other lawyer that he has authority to act, unless there is a good reason to suggest otherwise. And if such reasons are present, the first lawyer may request the second lawyer to produce his warrant to act, even after a written representation has been given by the second lawyer. 16:28 This should not be seen as a request on the part of the first lawyer casting aspersions on the second lawyer\'s professionalism and integrity. These are issues that have been ventilated in decisions and I do know better than to cite the High Court decision in Tung Hui Manekin for this proposition. 16:50 Entrapment of other lawyers. What I would like to highlight specifically for your attention is Practice Direction 8.5.5, Formally Paragraph 64 of the PDR2013. That is, that an advocate and solicitor must not obtain or seek to obtain evidence of another lawyer\'s wrongdoing by entrapment or other illegal or improper means. It should be pointed out that the very act of procurement of the wrongdoing of another advocate and solicitor is in 17:17 and of itself a breach of the duty of courtesy and fairness. In this regard, I would also point out that this practice direction was issued by the Law Society in the aftermath of the court decisions in Wong Keng Leong Rene and Law Society of Singapore and also Law Society in Tan Guat Neo-Philis. You should review the respective judgements to aid in your understanding of the scope and context of the highlighted practice direction. 17:47 Now we come to subheader 2, which is entering default judgment, rule 28 of the PCR 2015. 17:58 The Rule 28 of the PCR 2015 provides that an advocate and solicitor must not enter default judgement against a represented party without giving the other lawyer at least two working days\' notice. The Rule is intended to ensure that one lawyer does not take unfair advantage of the oversight of another. As is aptly put, the arms which he wields are the arms of a warrior, not an assassin. It is his duty to strike to accomplish the interests of his client. 18:27 per FAS but not per NE FAS. These are the words of the Honorable Justice BK Raja as he then was in the Public Trustee and in other and by Products Traders Private Limited. This provision is materially similar to Rule 70 of the earlier applicable rule in PCR 2010. I should point out, however, that there is a slight but important distinction 18:57 between Rule 70, PCR-2010 and Rule 28 of PCR-2015. Rule 70 prohibited a lawyer from entering judgment in default against any other party who is represented by another lawyer, and the operative words there are, and I quote, on record, without first giving two working days\' notice to the other lawyer. As explained in Law Society\'s Practice Directions 2013, 19:25 Rule 70, PCR 201-0 is applicable only in the entering of judgment in default of defence under Order 19. It does not apply to the entering of judgment in default of appearance under Order 13 of the Rules of Court. This is because until appearance in the matters has been entered on the adverse party\'s behalf by its lawyer, the lawyer is not considered as being on record acting for the adverse party. 19:55 We now come to the gist of the distinction. The phrase on record previously found in rule 70 of the PCR-2010 has been entirely omitted from the new rule 27 of PCR-2015. It is not clear whether the omission is intentional and if so the reasons for the omission. Taking the omission at face value and the learning on the earlier rule 70 PCR-2010 however, it may be argued that rule 27 of PCR-2015 20:25 now also requires Lawyer A to give the two day notice to Lawyer B where, first, Lawyer A after the filing and service of the writ of Lawyer B\'s client intends to enter judgement in default of appearance and second, Lawyer A is aware, perhaps from previous correspondence prior to the commencement of suit, that Lawyer B is acting for the other party in this matter. Which is to say 20:55 Rule 27 of PCR 2015 may not only apply after an appearance has been entered, it may also apply at the appearance stage and where the first party is contemplating entering the form of judgement where no appearance is filed. The position remains unsettled given the very recent vintage of PCR 2015. 21:21 This is an issue which requires further clarifications from the courts and the law society. And until such time that clarifications are forthcoming, the better approach may be to construe Rule 28 of the PCR 2015 as also being applicable to the entering of judgements in the form of appearance. This approach would arguably be consistent with the guiding principles to Rule 27, which is again predicated. 21:51 on courtesy and fairness. This will be another advocate and solicitor. For completeness, I should also point out that the two working days notice stated in Rule 27 of PCR 2015 may only be given after the expiry of the relevant time period stated under the Rules of Code. 22:16 We come now to the third subtopic, Allegations Against Another Lawyer, Rule 29, PCR 2015. 22:27 Rule 29 states that a lawyer must not permit any allegation against another lawyer to be made in the document filed in court, unless the other lawyer is given the opportunity to respond, and its response is also disclosed to the court where practicable. This rule allows lawyers who are not parties to the litigation the opportunity to respond to allegations made against them by a party to the litigation to the court. As pointed out earlier, the rule is again a manifestation 22:57 of the primary duty of courtesy and fairness on the part of one advocate and solicitor to another. This provision remains largely unchanged from Room 71 found in the 2010 PCR. And with that, I have now come to the end of my lecture. B24 EPR - IV\. Relationship with other legal practitioners and **[other persons]** - \(1) Responsibilities of legal practitioners to each other (Rule 7, 27 PCR) - **[Rule 7(2) - Allows disputes between the parties to be resolved without unnecessary complications. One can disagree and yet not be disagreeable.]** - Guiding Principles: **[Rules 7(1) and 27 PCR]** - Rule 7(1) - deal with another legal practitioner with good faith - Rule 27 - promote administration of justice - The duty of courtesy and fairness: - China Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd \[2005\] 2 SLR(R) 509 - one can disagree and yet not be disagreeable - Law Society of Singapore v Ahmad Khalis bin Abdul Ghani \[2006\] 4 SLR(R) 308 - counsel concerned can join in 'legal combat' and still display the nobility of the law - The Law Society of Singapore v Terence Tan Bian Chye \[2007\] SGDSC 10 - **[should not threaten other legal practitioners]** - Law Society v Ravi s/o Madasamy \[2023\] SGHC 65; - **[The substance of any allegation of misconduct is considered separately from the complainant\'s own conduct]** - Law Society of Singapore v K Jayakumar Naidu \[2012\] SGHC 200 - **[Not every act of alleged discourtesy will be scrutinised]** - Dealings with other legal practitioners: - o PD 8.5.3 - Draft Documents - - - o PD 8.5.7 - Professional Conference - o PD 2.1.1 - Challenging another Legal Practitioner on Law Society\'s Rulings - - o PD 8.5.9 - Offensive Letters - o PD 8.3.2 - Quoting of References in Correspondence - o PD 8.5.10 - Service of Originating Process on Legal Practitioners - o PD 8.5.6 - Phone Etiquette - o PD 8.3.1 - Communication with Former Client - o PD 7.3.3 - No Taking Over Brief Until Retainer Determined and Basis of **[Second Opinion]** - o PD 8.5.2 - Advising a Friend who is a Client of Another Legal Practitioner. - **[Undertakings]** to other solicitors: - **[Rule 7(3)]** -- No communication with represented clients without express approval **[unless not reasonably practicable or severe prejudice to own client]**. **[The rule is a strict one that extends to former clients.]** - **[Rule 7(4)]** -- Lawyer may give second opinion to represented clients but must not improperly seek to influence the client to change lawyers - Rule 7(6) -- **[Lawyer must honour every undertaking given to another lawyer]** - Rule 7(7) PCR - must not give an undertaking unless he believes it is necessary and he is certain to honour it; - Law Society v Arjan Chotrani Bisham \[2001\] SGHC 24 - **[Failure to honor an undertaking to deliver documents constitutes misconduct]** - Otto Ventures Pte Ltd v EECYT Law LLC \[2017\] SGHC 98 **[- Cannot cite client\'s instructions for not honoring solicitor\'s undertaking]** - - - - - Rule 7(8) -- Lawyer may ask another lawyer if he has authority to act for a person - Rule 7(9) -- Lawyer must accept a written representation from another lawyer that he has authority to act **[unless there is good reason to suggest otherwise]** - Law Society of Singapore v Naidu Priyalatha \[2022\] SGHC 224 - **[The fact that no loss was suffered by breach of the undertaking is irrelevant]** - A solicitor may ask another solicitor acting in the same matter to produce if he has authority to act: Rule 7(8) and 7(9) PCR, Tung Hui Mannequin Industries v Tenet Insurance Co Ltd and others \[2005\] 3 SLR(R) 184, PD 7.4.3 Entrapment to obtain evidence of touting: PD 8.5.5 - **[Obtaining Evidence]** of a Legal Practitioner's Misconduct by **[Entrapment]** or by Illegal or Improper Means; **[Rule 7(2) precurement of evidence via entrapment]** - \(2) Entering default judgment (**[Rule 28]** PCR) **[requirement of 2 days prior notice. construe Rule 28 of the PCR 2015 as also being applicable to the entering of judgements in the form of appearance.]** - Public Trustee and another v By Products Traders Pte Ltd \[2005\] 3 SLR 449 - \(3) Allegations against another legal practitioner (**[Rule 29]** PCR), **[unless the respondent lawyer is provided opportunity to respond (Not parties to litigation opportunity).]** - Tan Beng Hui Carolyn v Law Society of Singapore \[2023\] SGCA 7 - **[The court will consider the lack of remorse as an aggrevating factor to impose fine.]** PD 8.1.1. - Allegations Against Another Legal Practitioner in Court Documents - - - - Duty to give opportunity to respond: Imran bin Mohd Arip v PP \[2021\] SGCA 91**it is a matter of common fairness and professional courtesy that the person at the receiving end of the allegations has a chance to know what is being said about him, and to comment on the allegations, before they are raised before the court.** - \(4) Communication with court (**[Rule 30 PCR and PD para 41]**) - \(5) Communication with another legal practitioner (**[Rule 31 PCR]**) - \(6) Conduct in relation to other persons (**[Rule 8]** PCR) - Resonsibility to unrepresented persons or litigants in person (**[Rule 8(2)]**) - The Law Society of Singapore v Ahmad Khalis bin Abdul Ghani \[2006\] 4 SLR(R) 308 - **[Solicitor should not subordinate interests of third party to his own clients]** - Duty not to take **[unfair advantage]** of any person (Rule 8(3)(a)) - (Carolyn Tan Beng Hui v The Law Society of Singapore \[1999\] SGHC 23).- **[Should not use law firm\'s letter to exert pressure on third party.]** - Must not act towards **[any person]** in a **[fraudent]** manner (Rule 8(3)(b)) - Wong Juan Swee v The Law Society of Singapore \[1994\] 3 SLR(R) 619 - **[Failed to inform that his client was bankrupt]** - LOD cannot recover what is not recoverable at law (**[Rule 8(4))]** - Must not write threatening **[criminal]** or discipinary proceedings (**[Rule 8(5)]**) - PD 9.1.2 - Letters Threatening Criminal Proceedings / Offensive Letters; - Law Society of Singapore v Peter Pang Xiang Zhong \[2006\] SGDSC 21; - **[Should not send law firm letter to embarrass and exert pressure on the Complianant]** Law Society of Singapore v Terence Tan Bian Chye \[2007\] SGDSC 10 **Threatening to report another law firm (27 letters) to the Law Society is akin to threatening criminal proceedings and sending threatening letters is a serious breach of the etiquette rules** - The Law Society of Singapore v Chew Kia Heng \[2001\] SGDSC 3 - **[Do not make unreasonable demands (5 mins) to acknowledge receipt of letter of demand]** - Previous mediator should not act for subsequent matter (**[Rule 8(6)]**) - Abusive language and unruly behaviour: - Law Society of Singapore v Gopalan Nair \[2011\] SGHC 191; **[Should not write blogs about the judiciary even though written in his personal capacity - struck off.]** - Law Society of Singapore v Seow Theng Beng Samuel \[2022\] SGHC 112 - Test for misconduct: **[For the first element of falling below the required standards of integrity, probity and trustworthiness, the core concern was one of character: did the solicitor in question have a defect of character that rendered him unfit to remain an advocate and solicitor, with all the duties and responsibilities that this entailed? The second element of bringing grave dishonour to the profession spoke to a different concern: in such a scenario, the errant legal practitioner could not be suffered to remain on the roll, and to continue bearing the implicit imprimatur of the profession and the courts.]** - Must not commit misconduct in his **[personal capacity]** - Law Society of Singapore v Ismail bin Atan \[2017\] SGHC 190;  **[Even in cases that did not involve dishonesty]**, where a solicitor conducted himself in a way that fell below the required standards of integrity, probity and trustworthiness, and brought grave dishonour to the profession, he would be liable to be struck off. Law Society of Singapore v Choy Chee Yean \[2010\] 3 SLR 560 - **[work pressure will not be accepted as excuse for being dishonest]** - Law Society of Singapore v Gopalan Nair (alias Pallichadath Gopalan Nair) \[2011\] 4 SLR 607 - **[should not write blogs criticising the judiciary = struck off]** - Law Society of Singapore v Kirpal Singh s/o Hakam Singh \[2010\] SGDT 5; - **[cannot ask client to belly dance for solicitor]** - Law Society of Singapore v CNH \[2022\] SGHC 114 - **[sentencing under the criminal proceedings is in addition to the punishment imposed by the disciplinary court]** - PD 1.8.1 - Letters of Demand - Do not demand for solicitor\'s costs - Duty to comply with legal requirements of public institutions: Law Society of Singapore v Ong Ying Ping \[2005\] 3 SLR(R) 583 - PD 4.3.1 - Procedure to Visit and Interview Clients in Prisons.