EPR VidLec9 - Copy PDF

00:01 This is a recorded lecture on ethics and professional responsibility, which covers the supervision of staff, use of titles and executive appointments. On responsibility for staff of illegal practice, this is set out in Rule 32 of the Professional Conduct Rules. 00:22 Rule 32 states, a legal...

00:01 This is a recorded lecture on ethics and professional responsibility, which covers the supervision of staff, use of titles and executive appointments. On responsibility for staff of illegal practice, this is set out in Rule 32 of the Professional Conduct Rules. 00:22 Rule 32 states, a legal practitioner must, regardless of his designation in the law practice, exercise proper supervision over the staff working under him. Such staff would include paralegals. 00:40 The Supervision of Paralegals is set out in the Law Society\'s Guidance Note 371, which was issued on 31 January 2019. 00:53 The guidance note provides that paralegals include a legal executive, legal secretary, legal clerk or any other employee of a law practice, as long as they perform paralegal functions and assist a solicitor as a paralegal, and the person does not have in force a practising certificate and is without regard to the designation of such employee. 01:24 The guidance note also provides that a solicitor shall ensure that he remains responsible for all professional actions of a paralegal, and a paralegal performs his duties at all times under the constant supervision of the solicitor in relation to such paralegals\' involvement in any legal matter. 01:48 Paralegals have no right of audience and are not allowed to make unsupervised appearance before any court of Singapore, including hearings in judges\' chambers and pretrial conferences. However, with the prior leave of the court, they may be permitted to attend chambers and open court sessions to take notes of hearings. The solicitor must apply for leave as well to make sure 02:15 that the court is fully aware of the status of the paralegal before the commencement of the hearing. Further, the paralegal may not occupy the front row or any other areas reserved for solicitors. 02:32 Solicitors must ensure that paralegals refrain from engaging in any form of unsupervised conduct in litigation matters. In particular, in criminal matters, solicitors should restrict paralegals from engaging in unsupervised discussions with enforcement agencies, police officers or prosecutors. 02:58 That said, paralegals may be permitted to take statements from and interview clients or witnesses in their client\'s case, in the absence of the supervising solicitor, provided that no advice is rendered on such occasions. While these guidelines primarily relate to paralegals assisting solicitors in litigation matters or criminal matters, commentaries on the guidelines have clarified. 03:27 that such rules are also generally applicable to all other areas of practice, including corporate secretarial, conveyancing and intellectual property matters. 03:41 Paralegals, by way of their association with the supervising solicitor, are also subject to Rule 13.6 of the Professional Conduct Rules. Rule 13.6 provides that a legal practitioner must not publish, or take steps to publish, or take steps to facilitate the publication of any material concerning any proceedings, whether on behalf of his or her client, as long as it amounts to contempt of court. 04:11 or which is calculated to interfere with a fair trial or to prejudice the administration of justice. 04:21 Legal practitioners are also required to ensure that their paralegal staff are made aware of these obligations under Rule 13.6. 04:31 Legal practitioners may be potentially liable for any statement given by his or her paralegal if it contravenes Rule 13.6. 04:42 Solicitors must be mindful that paralegals and support staff employed by law practice are not allowed to practice law as an advocate or solicitor. While paralegals are not regulated under the Legal Profession Act, they do fall within the category of unauthorised persons. Section 77 of the Legal Profession Act, which will be covered later, states that no solicitor 05:12 all knowingly undertake any action that may amount to enabling an unauthorised person to practice law in Singapore. 05:24 And what is an unauthorised person? Section 32 of the Legal Profession Act provides that an unauthorised person is any person whose name is not on the roll and or he does not have in force a Practicing Certificate. An unauthorised person can neither practice as an advocate or solicitor nor do any act as an advocate or solicitor. 05:51 As stated before, Part B students and practice trainees are unauthorised persons as well. Only practice trainees who are part called in accordance with Section 32.3 of the Legal Profession Act may appear on behalf of a Singapore law practice before a judge or registrar. 06:14 Section 33.1 of the Legal Profession Act provides that it is a criminal offence for an unauthorised person to act as an advocate or solicitor or an agent for any party to proceeding. 06:30 to willfully or falsely pretend to be an advocate or solicitor, or that he is recognised by law as so qualified or authorised, or to offer or agree to place at the disposal of any other person the services of an advocate or solicitor for or in expectation of any fee, gain or reward. 06:55 Such unauthorised person should be liable upon conviction to a fine not exceeding \$25,000, or imprisonment not exceeding 6 months, or both. A subsequent conviction would incur a fine not exceeding \$50,000, or imprisonment not exceeding 12 months, or both. Under Section 33.6 of the Legal Profession Act, Section 33.1 applies to a body corporate who has committed the offence in such a manner. 07:24 as to be calculated to imply that the body corporat is qualified or recognised by law as qualified to act as a solicitor, or has the capacity or powers of a law corporation or a limited liability law partnership when in fact the body corporat does not. The body corporat could be liable on conviction for a first offence to a fine not exceeding 25,000 and for subsequent offence to a fine not exceeding 50,000. 07:55 There are of course exceptions to the unauthorised person definition under Section 34 of the Legal Profession Act, which provides that Section 33 does not extend into alias to the following persons. The Attorney General, Solicitor General, the Public Trustee or Official Assignee, the Director of Legal Aid as well as the Assistant Directors of Legal Aid and any person acting personally for himself only in any matter. 08:25 or proceeding for which he is a party. 08:30 There are further exceptions to unauthorised persons under section 35 of the Legal Profession Act. 08:37 Section 32 and 33 shall not extend to arbitration proceedings, therefore it does not extend to any arbitrator or umpire law-filling acting in any arbitration proceedings, any person representing any party in arbitration proceedings, or the giving of advice, preparation of documents and any other assistance in relation to or arising out of arbitration proceedings, except for the right of audience in court proceedings. 09:06 Section 35b of the Legal Profession Act further provides that sections 32 and 33 shall not extend to mediation and therefore does not extend to certified mediators, mediators conducting any mediation that is administered by a designated mediation service provider. 09:30 In addition to imposing a fine and or imprisonment under section 35A of the Legal Profession Act, the court may order any unauthorised person convicted of an offence to repay any fee, gain or reward received in respect of any such offence to the person who made the payment. 09:54 further under Section 36, an unauthorised person is not entitled to recover any costs done pursuant to an offence under Section 36. 10:07 As mentioned previously, Section 77 of the Legal Profession Act provides that solicitors should not do any of the following. To willfully and knowingly act as an agent for an unauthorised person in any legal proceeding. To permit his name to be made use of in any such proceeding or matter upon the account of or for the profit of any unauthorised person. To send any process to any unauthorised person. 10:37 or to do any other act enabling an unauthorised person to appear, act or practice, or purport to practice in any respect as a solicitor in any such proceeding or matter, or authorise any unauthorised person to operate any bank account in the name of and maintained by the solicitor or the Singapore law practice in which he practices. 11:04 I now refer to Practice Direction 3.11.2 given by the Law Society of Singapore on 1st June 2018. A solicitor should not assist unauthorised persons to commit a breach of Section 33 by merely signing or lending his name to documents prepared by such unauthorised persons, including but not limited to documents relating to the incorporation or formation of companies. 11:31 The consequences for breaching Section 77 of the Legal Profession Act are set out in Sections 77-3 and 77-4, which provide that disciplinary proceedings may be taken against the solicitor who has contravened Section 77. Also, the unauthorised person who was enabled by a solicitor to act or practice or purport to practice as a solicitor shall be guilty of an offence and shall be liable on conviction 12:01 to a fine not exceeding 50,000 or to imprisonment for a term not exceeding 12 months. 12:09 We now refer to the case of Troy Yeoh Siu Chye of 2019, where a solicitor of around 35 years standing was suspended for a period of four years for failing to exercise proper supervision over his staff. The solicitor had hired a convincing clerk and allowed the clerk to liaise with clients on payment matters, including the collection of payments for stamp duty. The clerk capitalised on the lack of supervision to commit certain\... 12:39 offenses. 12:42 It was held that the solicitor failed to exercise proper supervision over his employee and thus breached Rule 8.1 of the Professional Conduct Rules, which is currently the Rule 32 of the latest rules. The court found that the solicitor had essentially given the clerk free rein to deal with the petitioner\'s clients, with little to no supervision over the clerk\'s activities. 13:09 when in fact a higher standard of supervision should have been warranted in all of the circumstances. There was also a lack of periodic checks to monitor the clerks\' dealings with the clients and their monies in order to prevent abuse. All this amounted to a gross breach of the duty of supervision under Rule 32 of the Professional Conduct Rules and the LPA on the part of the solicitor. 13:38 We now come to the rules on descriptions and titles, which are set out in Rule 33. 13:45 Rule 33 provides that a legal practitioner who is an advocate and solicitor must not describe himself or herself in connection with his or her profession as anything other than an advocate and solicitor, a lawyer, a legal consultant if he is qualified to be one, a commissioner for oaths or notary public if appointed as one, or such other descriptions as may be approved by the counsel from time to time. 14:16 Senior Counsel. 14:22 as for executive appointments provided for in Rule 34 of the Professional Conduct Rule. 14:30 It is not uncommon for regal professionals to be offered directiveships and executive appointments. But what are executive appointments? 14:40 An executive appointment refers to a position where the holder of the position is required to perform executive functions in relation to a business or Singapore law practice, but excludes any non-executive director or independent director. 14:59 Under Rule 34.1 of the Professional Conduct Rules, a legal practitioner must not accept any Executive Appointment associated with any of the following businesses, which include 15:12 Any business which detracts from, is incompatible with, or derogates from the dignity of the legal profession. Any business which materially interferes with his primary occupation as a lawyer, his availability to those who seek his services as a lawyer, or the representation of his clients. Or any business which is likely to unfairly attract business in the practice of law. 15:42 However, Rule 34 for states that subject to Rule 34. One, a legal practitioner may accept an executive appointment in a business entity which does not provide any legal services or law-related services if all of the conditions set out in the second schedule are satisfied. 16:04 The conditions in a second schedule for accepting an executive appointment in a business entity include, amongst other things, that the business of the business entity must not jeopardise the professional integrity, independence or competence of the legal protectioner, and must not detract from the standing and the dignity of the legal profession. The business entity must not be held out or described in such a way as to suggest that the business entity is a law practice. 16:34 or that any legal practitioner in a business entity provides services, carries on business or is employed as a regulated legal practitioner. 16:45 The involvement of the legal practitioner in this business must not impair and must not be in conflict with the legal practitioner\'s duties in the law practice in which the legal practitioner practices or to any client of that law practice. 17:02 Finally, it is specifically provided that the business of a housing agent is incompatible with that of a solicitor, as the calling of a housing agent, a broker, would detract from the honour and the dignity of the bar. 17:17 Section 83-1 of the Legal Profession Act states that a solicitor may be struck off or suspended for cause if he or she carries on by himself or herself, or any person in his or her employment, any trade, business or calling that detracts from the profession of law, or in any way incompatible with it, or is it employment in any such trade, business or calling. 17:44 We have come to the end of this video lecture. B24 EPR - V. Supervision of staff, use of titles and executive appointments - \(1) Responsibility for staff of law practice (**[Rule 32 PCR]**) - Sections 32-36, 77 LPA; - s77 LPA - **[assisting unauthroised persons; 12 months; 50K]** - PD 3.11.2 - Work Done by an **Unauthorised person under solicitor\'s name = Criminal offence** - GN 3.7.1 -- Supervision of Paralegals - Paralegals do fall within the category of "unauthorised persons". - Failure to exercise proper supervision: Law Society of Singapore v Yeo Siew Chye Troy \[2019\] SGHC 115; **[Solicitor will be liable for employee who misappropriated \$848,335.09 from 17 clients; ignorance of the law is not an excuse; 4 year suspension]** - Law Society of Singapore v Tan See Leh Jonathan \[2020\] SGHC 102 - **[Fee sharing agreement with paralegal is prohibited]** - Responsibility to supervise Practice Trainees: Law Society v Clarence Lun Yaodong \[2022\] SGHC 269 at \[47\]-\]50\] - **[Solicitor is responsible to supervise Trainee]** - s32 LPA - Requirements for practice and unauthorised persons - \(2) Descriptions and **titles** (s**** LPA) - **[Criminal offence]** - Section 34 LPA **[Exceptions to unauthroised person]** to Section 33 LPA - Section 35 LPA **[Exceptions to \"unauthorised person\"]** to Section 32 and 33 (Arbitrator) - Section 35B LPA **[Exceptions to \"unauthorised person\"]** to Section 32 and 33 LPA - **[Consequences]** of breach Section 33 LPA - s36 LPA- to repay fees paid - **[Assisting]** unauthorised persons **[s77 LPA]** - **[Consequence]** of breach if s77 LPA; **[50K; 12 months]** - Law Society of Singapore v Yeo Siew Chye Tony \[2019\] SGHC 115 - **[Failure to supervise conveyancing clerk]** - Practice Direction 3.11.2 **[- Prohibition of Solicitor \'lending name\']** - Rule 33 - **[prohibition of using occupation \"solicitor\"]** - Exceptions to Rule 32 and 33 \"unauthorised persons\" - Rule 35 LPA - Exceptions under Rule 35B; mediator, foreign lawyer - s36 LPA repay fees - \(3) **[Executive appointments]** (**[Rule 34]**; and First to Fourth Schedules PCR) **[-cannot derogate from the dignity of the legal profession]** - **[Exceptions]** under Second schedule - **[business entity cannot be held out as legal practice.]** - Due Cause s83(2)(i) - PD 3.8.1 - Executive Appointments and Engagement in Business, Trade or Calling (e.g. Housinhg Agent)