EPR VidLec8 - Copy PDF

00:02 Hi, I\'m Tay Yong Seng and I\'m going to talk to you about ethics and professional responsibility, relationship with other legal practitioners and other persons. There are three main aspects of what I\'m going to talk about today. One, communication with the court. Two, communication with ano...

00:02 Hi, I\'m Tay Yong Seng and I\'m going to talk to you about ethics and professional responsibility, relationship with other legal practitioners and other persons. There are three main aspects of what I\'m going to talk about today. One, communication with the court. Two, communication with another legal practitioner. Three, conduct in relation to other persons. 00:28 Communications with the court first. This is governed by, amongst other things, rule 30 of the professional conduct rules. And it provides that where a legal practitioner acts for a party to any proceedings that a legal practitioner knows are pending, or likely to be pending before the court, that legal practitioner must not initiate any communication with the court about the facts. 00:57 issues or any other matter in those proceedings unless a, the legal professional has given each legal professional acting for another party to those proceedings a reasonable opportunity to be present or to reply and two, if a, communication with the court was in writing, every other party to those proceedings is going to complete a limited time. 01:21 There\'s also a paragraph 2, which says that if you fail to comply with paragraph 1, then you must inform each legal practitioner acting for another path into those proceedings or the circumstances as soon as possible. What this means is that when you write a letter to court, you must copy the other side. Please do not write unilateral letters. If you forget to copy the other side, then always send a copy of a letter to court to your learner friend and so as to inform him. 01:51 of what he had written to God and so as to allow him an opportunity to reply to your 02:00 Ex parte applications are covered under rule 30 sub rule 3. And it says that if you are going to initiate any communications with the court in relation to an ex parte application, then you must comply with all the relevant practice directions for ex parte applications. 02:22 Ex parte applications are those which do not involve service of application or any other party and there are specific rules for different types of ex parte applications. Most common type of ex parte application is the application for injunction and this is done in cases of urgency and you don\'t actually serve the papers on the opposing side. 02:47 If you look at Paragraph 41 of the Supreme Court Practice Direction, there are a number of rules which you must comply with. For example, you must give notice of the ex parte application to the other side prior to the hearing. Notice may be given by way of fax, telex or orally by telephone. Try to use fax instead of telephone. Except in cases of extreme urgency or leave of the court, you must give at least two hours notice. 03:12 And then when you give notice, the notice must at least date the date, time and place fixed for the hearing and the nature of the relief sought. And once you have a copy of the papers and they\'re ready to be filed in court, you should give a copy of the papers to the other side. The two-hour notice rule is important. It is not a mere formality. A recent Court of Appeal decision where the Malraeba Injunction was set aside. 03:40 actually play some emphasis on the applicant\'s failure to comply with that rule, that decision will extend the life of the needs to be at risk. 03:51 If you look at paragraph 41 of the Practice Direction, it does go on to say that any party applying for an injunction must comply with the following rules. 1. In the event that some or all the parties are not present or represented, then the applicant should inform the court of the attempts they were made to notify the other side of the making of the application, what documents were given to them and whether the other side consents with the application being heard without. 04:20 that presence. 04:25 Of course, there will be situations where you don\'t give notice because giving notice might defeat the purpose of the Ex parte application. But the reasons for not giving notice and not following the requirements of the practice directions must be clearly set out in the affidavit prepared in support of the Ex parte application. 04:47 Next, I\'m going to talk about communication with another legal practitioner. It\'s under Rule 31 of the Professional Conduct Rules, and it says that where a legal practitioner acts for a party in the matter, the legal practitioner must not disclose to the court any communication relating to the matter between the legal practitioner and the legal practitioner acting for another party in the matter, unless there\'s an agreement between the two legal practitioners to do so. 05:14 So this rule applies to both discussions prior to the commencing of proceedings, as well as proceedings, discussions in the course of court proceedings. And the discussions could involve matters concerning the way to proceed, mutual concessions relating to procedure, or the lawyer\'s respective views of the case. So, for example, you could have discussions with a learned friend before a PTC starts, or you could have discussions in the middle of trial. 05:43 between one day and the next day of trial on how to deal with the witnesses and so on, these discussions are usually not permitted to be disclosed to the court unless you have the consent of the other side. In practice, however, where there are written communications about procedure or how to move forward a case, we usually use the words without prejudice or off the record to denote 06:09 such communications and you may wish to do so in order to make sure that such communications are clearly labelled and not to be disclosed. 06:21 Third, I\'m going to talk about conduct in relation to other persons. This is Rule 8 of the PCR. And Rule 8.1a says, A legal practitioner who deals with any person must, regardless of whether that person is involved in any matter with which the legal practitioner is concerned, be honest and courteous and behave in a manner befitting the legal practitioner\'s professional standing. I stress the words regardless of whether that person is involved in any matter with\... 06:50 which the legal practitioner is concerned. Which means that you have to be honest and courteous to anybody who is a person, not just a person who is your client or who has some business in your case. 07:07 Blue Egg 2 says this A legal practitioner when dealing on behalf of his or her client with any person who is not represented by another legal practitioner So this is where you, you\'re acting on behalf of a client and you\'re dealing with a third person who is unrepresented You must A. Not give that person any legal advice 07:33 other than to tell him to get his own independent legal advice. If you know or ought to know that the interests of that person are adverse or potentially adverse to the interests of your client, and you must take reasonable steps to ensure that that other person is not under the impression that you are also protecting kids with\... 07:55 So I\'ve sent out in this slide, Law Society of Singapore, because Ahmad Khalid, Ahmad Khalid is a fairly straightforward case. He acted, he was a lawyer whose client was to be the sole administrator of an asset. His client had introduced him to other beneficiaries of the same estate. And he was introduced as somebody who was there to help the family as a lawyer. 08:25 But what the lawyer did was that he told these other beneficiaries that they need not be concerned because his client as the sole administrator would not be able to deal with the property without their authorization. The court then held that this land implied retainer to be formed between the lawyer and these other unrepresented beneficiaries. 08:53 As a result, the other beneficiaries who were not Abdul Ghani\'s express client renounced their claims to be co-administrators and allowed and consented to dispense with being sureties to the administration bond. The lawyer\'s client then mortgaged the house to secure a bank loan for its own purposes. The house, if you recall, is the estate\'s main and principal asset. 09:23 So then eventually the lawyer was charged with, amongst other things, failing to discharge his duties as a solicitor for the estate to the beneficiaries, and all failing to safeguard the interest of the beneficiaries. Because in allowing the mortgage to take place, he had subordinated the interest of the beneficiaries to the interest of his particular client. The court held that an advocate solicitor would be guilty of unprofessional conduct with respect to third parties, with whom he has no direct\... 09:52 or legal relationships. Now although in this case, the court was willing to find that there was an implied retainer arising between the lawyer and the other unrepresented beneficiaries of their state. 10:08 Moving on to Rule 8.3, a legal practitioner must not take advantage of any person, and must not act towards any person in a way which is fraudulent, deceitful, or otherwise contrary to a legal practitioner\'s position as member of an honorable profession. There is an illustration of 8.3a, which is not take unfair advantage of any person. In Carolyn Tan Beng Kuei\'s Law Society, a lawyer had written a letter of demand to 10:36 the recipient but copied it to the recipient\'s bankers to exert undue pressure on the recipient. That was found to be taking advantage, unfair advantage of that person. 10:49 You must also not act in a way which is fraudulent, deceitful, or otherwise contrary to your position as a member of an honourable profession. And there\'s Wong Juan Si, sui versus law society. Now in this case, the lawyer had been asked to provide a credit reference about one Francis, and the lawyer had actually acted for the petitioning creditor for Francis\' bankruptcy application. 11:19 So the lawyer actually knew and was intimately aware that Francis was bankrupt. But the lawyer did not tell the complainant of Francis\' bankrupt status and in fact, go to the complainant\'s company to request that Francis be given more time to pick up the shares. The complainant was a share dealer. And the lawyer was found to have been guilty of giving a wrongful reference and a fine was imposed. 11:47 Next, Rule 8.4 says if you issue a letter of demand, you must not demand anything that\'s not recoverable by due process of law. So if you are going to collect a simple debt and ask for debt with letter of demand, you can\'t claim for the cost. Because at that stage, without legal proceedings, it may be said that costs are not recoverable yet, unless the underlying contract says that such costs are already provided for. 12:13 You can look at practice direction, karma 54, the loss of any practice direction. 12:20 Similarly, when you have a civil claim against another person, Rule 8-5 says that you cannot threaten an institution of criminal or disciplinary proceedings which are collateral to that civil claim. 12:39 So, if you read the book Professional Conduct for Advocates and Solicitors, at page 92, you can\'t threaten legal proceedings to achieve a stated objective. However, you can actually point out that if you do not comply with a particular order or statutory provision, that failure may result in the commission of an offense or penalty. In terms Tan, 13:08 versus law society. A lawyer had sent multiple letters accusing opposing counsel of deception, of misleading the court, threatening to report the message to law society. The lawyer had sent 27 letters alleging the commission of criminal offenses, threats to take criminal proceedings, and scandalous offensive questions calculated to vilify an alloyed addressives. And the court held that this was misconduct unbefitting as advocates for this. 13:37 newspaper. 13:42 Apart from that, an advocate and solicitor must not be offensive in his letters or oral communications, whomever they are addressed to. So again, the same book which I was referring to, Professional Conduct for Advocates and Solicitors, page 93. You can\'t write offensive letters to clients of other solicitors, to government departments and members of public. Do not use insulting language. Do not indulge in equimonious correspondence. 14:10 So in Chiu Kya Heng\'s case, a lawyer had sent a letter to his opposing party demanding the opposing party to accept service at his office reception area within five minutes from the receipt of the letter. If not, he would apply for substituted service by publication in newspapers. The lawyer had written a letter basically to make a bill to embarrass the other side by stating that his employees would be notified about a refusal to accept service. 14:38 So the debt lawyer was reprimanded for writing offensive letters. 14:44 You should look at this paragraph, also paragraph 48 of the Low Society Practice Directions when you visit an interview client in prison. 14:56 If you are asked to act as a mediator, you must not act for any party to the mediation in relation to what you are mediating or any matter discussed during the mediation. This will be very important to note, especially when you have pre-arbitration or pre-litigation mediation process. 15:16 Now, even if you\'re acting in a personal capacity, try not to commit misconduct. In Law Society of Singapore, Gopalan Nair, Gopalan Nair was a lawyer who had moved to the United States and he was writing blogs about certain members of the judiciary and they were rather quite scandalous. And he was found guilty of unfitting conduct or struck off the roles in Singapore, even though he was writing the blog in his capacity, not as a lawyer but in his personal capacity. 15:49 In the old society versus Choi Chi Yin, the legal practitioner had actually been convicted in a foreign jurisdiction which involved an element of dishonesty. So he was struck off in Singapore, even though he had committed no offence in Singapore, but just one overseas. 16:11 In Law Society vs. Kapow Singh, the solicitor asked his client to perform a belly dance for him while visiting her premises in a professional capacity. He also made some inappropriate verbal advances. Asking your client to perform a belly dance is unbefitting conduct and it will lead you to being reprimanded. Thank you very much. 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.