Singapore Legal Profession Rules and Regulations PDF

Supervision of staff, use of titles and executive appointments Responsibility for staff of law practice (Rule 32 PCR) Rule 32: A legal practitioner must, regardless of the legal practitioner’s designation in a law practice, exercise proper supervision over the staff working under the legal practiti...

Supervision of staff, use of titles and executive appointments Responsibility for staff of law practice (Rule 32 PCR) Rule 32: A legal practitioner must, regardless of the legal practitioner’s designation in a law practice, exercise proper supervision over the staff working under the legal practitioner in the law practice. Proper supervision is vital for the protection of the public and it ensured that clients received legal advice only from those duly qualified and authorised to carry on legal work. This preserves public confidence in the legal profession which is an indispensable element in the fabric of the justice system Who are “unauthorised persons” S32(1) Legal Profession Act (LPA): They are unauthorised persons if This person (a) his or her name is NOT on the roll of advocates and solicitors; and/or (b) he or she DOES NOT have in force a practising certificate This person (a) his or her name is NOT On the roll of lawyers (NP); and/or (b) he or she DOES NOT have in force a provisional practising certificate; and/or (c) when carrying out the act in question, he or she is NOT under the supervision of a solicitor Reasons why an unauthorised person cannot practice as an advocate and solicitor or do any act as an advocate and solicitor? - They will expose their clients to possible loss in the process because being unauthorised means that they do not possess the necessary professional indemnity insurance cover. Even if the unauthorised person had once been a lawyer, it did not mean that pretending to be a advocate or acting as an advocate was any less serious. Failing to renew the practicing certificate is not one of mere technicality because there is a public interest in ensuring that clients receive legal advice only from those duly qualified and authorised to carry on legal work must be protected. (LSS v Tan See Leh Jonathan) Part B students and practice trainees, paralegals are “unauthorised persons”. Criminal offence for unauthorized person to act as an advocate/pretend to be an advocate 33(1)(a) acts as an advocate or a solicitor or an agent for any party to proceedings, or, as such advocate, solicitor or agent  - (a) sues out any writ, summons or process; - (ii) commences, carries on, solicits or defends any action, suit or other proceeding in the name of any other person, or in his or her own name, in any of the courts in Singapore; or - (iii) draws or prepares any document or instrument relating to any proceeding in the courts in Singapore 33(1)(b) wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he or she is duly qualified or authorised to act as an advocate or a solicitor, or that he or she is recognised by law as so qualified or authorised, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $25,000 or to imprisonment for a term not exceeding 6 months or to both and, in the case of a second or subsequent conviction, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both Criminal offence for unauthorised person who directly or indirectly disposes services + Expects gain 33(2) and 33(3): the unauthorised person offers or agrees to place at the disposal of any other person the services of an advocate and solicitor for or in expectation of any fee, gain or reward - The unauthorized person who directly or indirectly - (a) draws or prepares any document or instrument relating to any movable or immovable property or to any legal proceeding; - (b) takes instructions for or draws or prepares any papers on which to found or oppose a grant of probate or letters of administration; - (d) on behalf of a claimant or person alleging to have a claim to a legal right writes, publishes or sends a letter or notice threatening legal proceedings other than a letter or notice that the matter will be handed to a solicitor for legal proceedings; or - (e) solicits the right to negotiate, or negotiates in any way for the settlement of, or settles, any claim arising out of personal injury or death founded upon a legal right or otherwise, - 33(5): Every person who is convicted of an offence under subsection (2) or (3) shall be liable for a first offence to a fine not exceeding $10,000 or in default of payment to imprisonment for a term not exceeding 3 months and for a second or subsequent offence to a fine not exceeding $25,000 or to imprisonment for a term not exceeding 6 months or to both. Solicitor cannot sign off or lend his name to Work done by an unauthorised person PD 3.11.2: A solicitor (as defined by the Act) should not assist unauthorised persons to commit a breach of section 33 of the Legal Profession Act (Cap 161, 2009 Rev Ed) 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.  - Members are also reminded that, under rule 32 of the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015), they are to exercise proper supervision over staff (which may include unauthorised persons) working under them in the law practice Ensure that he legal advice is not given through or prepared and dispatched through a third party If legal advice is given through or a document is prepared and dispatched through a third party, this may be in breach of S33 of the LPA.. An unauthorised person, as defined under section 32(2) of the LPA, may be in breach of section 33 of the LPA if he/she acts as an advocate or solicitor or provides legal services; eg, if your client requested you to prepare a letter of demand threatening legal proceedings for a debt owed and requested the same be dispatched to them via e-mail to enable them to forward the same to the debtor via e-mail, you should refuse to do so (GN 6.1.1) Exception to S33 “unauthorized person”: AG, Public Trustee, Legal Aid Director etc S34(1): S33 does not extend to (a) the Attorney-General, a Deputy Attorney-General or the Solicitor‑General or any other person acting under the authority of any of them; (b) the Public Trustee, the Official Assignee, Assistant Public Trustees and Assistant Official Assignees acting in the course of their duties under any law relating to those offices; (c) the Director, a Deputy Director or an Assistant Director of Legal Aid acting in the course of the duties of the Director, Deputy Director or Assistant Director of Legal Aid (as the case may be) under the provisions of the Legal Aid and Advice Act 1995 or the International Child Abduction Act 2010; Exception to S33 “unauthorized person”: Arbitration proceedings S35(1) Sections 32 and 33 do not extend to — (a) any arbitrator or umpire lawfully acting in any arbitration proceedings; (b) any person representing any party in arbitration proceedings; or (c) 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. (2) In this section, “arbitration proceedings” means proceedings in an arbitration which — (a) is governed by the Arbitration Act 2001 or the International Arbitration Act 1994; or (b) would have been governed by either the Arbitration Act 2001 or the International Arbitration Act 1994 had the place of arbitration been Singapore. Exception to S33 “unauthorized person”: AG, Public Trustee, Legal Aid Director etc S35B(1) Sections 32 and 33 do not extend to — (a) any certified mediator conducting any mediation; (b) any mediator conducting any mediation which is administered by a designated mediation service provider; (c) any foreign lawyer representing any party in any mediation that — (i) is conducted by a certified mediator or administered by a designated mediation service provider; and (ii) relates to a dispute involving a cross-border agreement where Singapore is the venue for the mediation; or (d) any foreign lawyer registered under section 36P and representing any party in any mediation that relates to a dispute in respect of which an action has commenced in the Singapore International Commercial Court. No costs recoverable by unauthorised person => he is not entitled to any legal fees 36.—(1) No costs in respect of anything done by an unauthorised person as an advocate or a solicitor or in respect of any act which is an offence under section 33 are recoverable in any action, suit or matter by any person whomsoever. (2) Any payment to an unauthorised person for anything done by that unauthorised person which is an offence under section 33 may be recovered by the person who paid the money in a court of competent jurisdiction. (3) Subsection (2) does not entitle any person (called in this subsection the claimant) to recover from an unauthorised person any payment that has been repaid to the claimant or paid to the Society for the benefit of the claimant under section 35A(1). Solicitor cannot assist unauthorised persons 77.—(1) A solicitor must not — (a) wilfully and knowingly act as agent for any unauthorised person in any legal proceeding of any kind or in any matter which can be done only by a solicitor who has in force a practicing certificate; (b) permit his or her name to be made use of in any such proceeding or matter upon the account or for the profit of any unauthorised person; or (c) send any process to any unauthorised person, or do any other act enabling any unauthorised person to appear, act or practise or purport to practise in any respect as a solicitor in any such proceeding or matter. (2) A solicitor must not 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 the solicitor practises (3) Disciplinary proceedings may be taken against any solicitor who has acted in contravention of subsection (1) or (2). (4) Any unauthorised person who was enabled by a solicitor to act or practise or purport to practise as a solicitor shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months. (5) In this section, “unauthorised person” has the meaning given by section 32 Solicitor cannot sign off or lend his name to Work done by an unauthorised person PD 3.11.2: A solicitor (as defined by the Act) should not assist unauthorised persons to commit a breach of section 33 of the Legal Profession Act (Cap 161, 2009 Rev Ed) 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 companie GN 3.7.1 Supervision of Paralegals (is an unauthorised person) Definition of Paralegal: Paralegal includes a legal executive, legal secretary or legal clerk and any other employee of a law practice who - performs paralegal functions and assists a solicitor as a paralegal - who does not have in force a practitising certificate and is without regard to the designation of such employee Can the paralegal appear in court? - Paralegals have no right of audience before any Court in Singapore. - However, with the prior leave of the Court, they may be permitted to attend chambers and open Court sessions to record notes of hearing. - Solicitor must take due care to ensure that paralegals are not allowed to make unsupervised appearance before any court in Singapore (including hearings in judges’ chambers and pre-trial conferences - In the event the paralegal accompanies the supervising legal practitioner to court hearings and seeks to be in attendance at any hearing, it is the responsibility of the supervising legal practitioner to ensure that the court is fully made aware of the status of the paralegal before the commencement of proceedings. Even in such cases, paralegals are not permitted to occupy the front row seating area or any other seating area normally reserved for legal practitioners in the court without the permission of the court. - Solicitor is responsible for paralegal; must have constant supervision of paralegal - 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 paralegal’s involvement in any legal matter - In ligitation matters, Solicitors must ensure that paralegals refrain from engaging in any form of unsupervised conduct.  - In criminal matters, solicitors should restrict paralegals from engaging in any unsupervised discussions with enforcement agencies, police officers or prosecutors. - Paralegals are 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 Publishing materials that interfere with fair trial / contempt of court Legal practitioners are required to ensure that their paralegal staff are made aware of their obligations under rule 13(6) of the PCR 2015 Paralegals are subject to rule 13(6) of the PCR 2015: Provides that the legal practitioner must not publish, or take steps to facilitate the publication of, any material concerning any proceedings, whether on behalf of his/her client, which amounts to a contempt of court or which is calculated to interfere with the fair trial of a case or to prejudice the administration of justice. FACT: Failure to exercise proper supervision over employee/paralegal ( Law Society of Singapore v Yeo Siew Chye Troy SGHC) The respondent failed to exercise proper supervision over his employee by failing to take steps to safeguard against the fraud that his employee was evidently able to perpetrate with ease and over a substantial period of time REASONS 1. This would be the first time the respondent would be managing and running a conveyancing department. Yet, the respondent exercised little if any diligence in assessing whether it was appropriate to leave his employee to run this part of the practice despite knowing very little about the employee. He “gave the employee free rein to deal with the Firm’s clients with little to no supervision over his activities and with no adequate system of periodic checks to monitor his employee’s dealings with the Firm’s clients and their conveyancing moneys, to prevent abuse. This was epecially serious given that this was an area of practice that the respondent must have known, or be taken to have known, involved the handling of clients’ moneys, and which as a result was subject to significant regulation 2. Largely because of the respondent’s lack of adequate supervision, Sim was able to operate his fraud over a long duration of 8 months. It was extremely unsatisfactory that the respondent appeared blissfully unaware of what Sim was up to. More seriously, he was disinclined to pursue further steps or inquiries when serious irregularities seemed to emerge such as taking steps to alert all clients that they may have been defrauded by the employee after the respondent had been informed by IRAS that his employee was believed to have forged at least one stamp duty certificate. 3. Court noted the substantial amounts that were misappropriated and the substantial number of clients who were affected 4. REspondent overlooked serious warnings that something was amiss a. when the employee represented that he had personally made payments of stamp duty on behalf of the firm’s clients which should have given rise to a number of  concerns as this would mean that an employee of the firm was making substantial payments out of his own assets on behalf of the firm’s clients. When the employee claimed that it was due to the firm’s conveyancing department which did not process payment timeously, the respondent do not seriously investigate or pursue the employee’s claim. b. The respondent’s ignorance of the law regarding the rules and obligations cannot excuse a solicitor’s misconduct especially when the various rules in question are directed at solicitors precisely in order to prevent such fraud c. Any steps that the respondent took were reactive measures after the consequences of his failures started to emerge FACTS: Respondent engaged one Sim Tee Peng (“Sim”) to establish a conveyancing department in the firm. It would be the first time the respondent would be managing and running a conveyancing department. Unbeknownst to him, Sim used the opportunity to commit cheating and/or criminal breach of trust offences, over almost eight months, in respect of conveyancing moneys he collected from 17 clients, and misappropriated a total sum of $848,335.09. (Law Society of Singapore v Tan See Leh Jonathan SGHC 102) rst, the respondent has a duty to exercise proper and constant supervision over Colin Phan, who was employed as his paralegal (see r 32 of the Legal Profession (Professional Conduct) Rule. It was a criminal offence for an unauthorised person, to represent himself to be an advocate and solicitor. Proper supervision was vital for the protection of the public and it ensured that clients received legal advice only from those duly qualified and authorised to carry on legal work. The respondent’s failure to supervise Colin Phan undermined public confidence in the legal profession Penalty: The respondent facilitated the paralegal’s commission of the offence for the paralegal to hold himself out as an advocate and solicitor. - (1) “The respondent knew, a month before hiring Colin Phan, that he had not renewed his practising certificate and was an unauthorised person under s 32(2) of the Act. (2) Nevertheless, the respondent proceeded to hire Colin Phan as his paralegal, and entered into an arrangement with Colin Phan to take over and clear some of Colin Phan’s files as the latter had failed to renew his practising certificate which involved sharing legal fees”. (3) THe respondent knew or ought to have known that the paralegal represented himself to be an advocate and solicitor to 3 other individuals but he did nothing. Hence, the advocate and solicitor showed a blatant disregard for the ethical standards. - Mitigating factors: First, respondent admitted without qualification to all the facts as set out in the Statement of Case. This ensured that there was no unnecessary wastage of time and resources. Second, the respondent has no similar antecedents. Third, the respondent had voluntarily ceased to practise from 1 April 2019. This is a weighty mitigating factor that is indicative of the respondent’s remorse and guilt in relation to his misconduct A three month suspension is appropriate, absent the aforementioned mitigating factors a longer period of suspension would have been imposed. FACTS: Respondent lawyer hired unauthorised person as a paralegal even when the unauthorised person informed the respondent a month before that he had been unable to renew his practicing certificate to practise as an advocate and solicitor in Singapore. Paralegal sent emails to 3 individuals where he represented himself to be an advocate and solicitor. The respondent was copied in the e‑mails. The respondent and unauthorised person also had an agreement to share approximately 50% of the respondent’s fees for the legal work that the latter had performed. FACTS: Responsibility to supervise Practice Trainees To be a supervising solicitor: The advocate solicitor is qualified to act as supervising solicitor for practice trainees if he had a valid practicing certificate for at least five years out of the seven years before commencing supervision of any practice trainee (S18(1) of hte Admission Rules). This level of seniority is required because trainees depend on their supervising solicitors to acquire the values, competencies and skills necessary to become members of a noble and honourable profession. These rules that permit lawyers of a certain seniority to supervise exist to ensure lawyers are training appropriately and there is no compromise in the quality of any work that trainee lawyers do. The respondent’s clients were denied the benefit of these rules implemented to safeguard the quality of supervision provided to trainees, and ultimately to protect and uphold the quality of legal services dispensed to the client Practice trainee is a “particular type of employee” of a law practice: The main purpose of that employment is to provide the training necessary to imbue aspiring lawyers with the character and competencies expected of an advocate and solicitor. OTF, In the seven years before the respondent commenced his supervision of the pracitce trainee, the respondent had held a practicing certificate for only 2 years, 10 months and 16 days, and 2 years, 11 months and 3 days respectively. Once the respondent knew that neither he nor anyone else in the law practice was able to provide such supervision for the practice trainee, it was improper and mischievous of him to insist that the trainee continue working by “directing the practice trainee to perform substantive work. He directed the practice trainee to draft a letter seeking timelines from the court for amendments to a “reply”, preparing an affidavit fo evidence in chief and performing legal research”, pressing the practice trainee to meet a deadline even when he knew that the practice trainee should not have been undertaking such work since there was no suitable supervising solicitor. The six weeks that the practice trainee worked hence did not count towards the fulfillment of the practice training period and thus needed to apply for hte Abridgement to file the necessary papers to be called to the Bar - FACTS: the respondent had only held a practicing certificate for two years, ten months and 16 days in the preceding seven years Law Society v Clarence Lun Yaodong SGHC 269 at -]50] Cannot share fees with unauthorised persons (Rule 19 PCR) 19(1) A legal practitioner must not share the legal practitioner’s fees with, or pay a commission to, any unauthorised person for any legal work performed by the legal practitioner. (2) A law practice must not share its fees with, or pay a commission to, any unauthorised person for any legal work performed by the law practice. PD 5.4.1 – Use of Debt Collectors (AS THE UNAUTHORISED PERSON) for the Recovery of Legal Fees and Expenses The term ‘debt collector’ means any person engaged in any business of collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another. THe potential issues of lawyers using debt collectors raises a number of potential issues - (a) There is a potential for the use of abusive, deceptive, and unfair debt collection practices by debt collectors. Unlike practicing legal practitioners, debt collectors are not bound by prescribed professional standards of conduct and owe no fiduciary or other special duties. - (b) In certain circumstances, the remuneration arrangement for debt collectors may breach the existing rules relating to fee sharing and the payment of commissions under rule 19 of the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015). - (c) The use of debt collectors to recover outstanding legal fees and expenses may also breach the duties of confidentiality of a legal practitioner, as well as derogate from the dignity of the legal profession and adversely affect the standing and perception of the legal profession in the eyes of the public. - (d) Legal practitioners, as officers of the court, should bear in mind that they owe fiduciary obligations to their clients and that the courts are the ultimate arbiters of the recovery of any legal fees and expenses. It would therefore be improper for legal practitioners and law practices to recover their fees and expenses by adopting a method used by some creditors in ordinary creditor/debtor relationships. - Sharing fees with unauthorised person (expired practicing certificate) who held himself out as legal practitioner: Law Society of Singapore v Tan See Leh Jonathan SGHC 102 The unauthorised person is not entitled to and cannot recover any fees done in relation to any legal work he performs (S36(1) LPA, S35A, S33(1)) The unauthorised person is not entitled to, and cannot recover any fees done in relation to, any legal work he performs. Hence, The respondent had a duty not to share his fees with an unauthorised person for any legal work performed. OTF, the advocate and solicitor and the paralegal (Unauthorised person) had a fee arrangement to “share approximately 50% of the fees with an unauthorised person for any legal work performed by the advocate and soliciotr”.. It is an offence for an unauthorised person to hold himself out as an advocate and solicitor; this unauthorisd person cannot recover any fees for any legal work he performed. This fee arrangement to share his legal fees with paralegal “facilitated the commission of the unauthorised person’s offence” by effectively allowing the unauthorised person to function as an advocate and solicitor,”Such unethical and unprofessional conduct cannot be condoned as it undermines the integrity and dignity of the legal profession “ (LSS v Tan See Leh Jonathan) The fact that the unauhotrised person was a lawyer but could not renew his practicing certificate did not make hte respondent’s conduct any less serious. The law does not make any distinction between the various types of unauthorised persons (2) Descriptions and titles (Rule 33 PCR) How can an advocate and solicitor describe himself or herself? 33.—(1) A legal practitioner who is an advocate and solicitor MUST NOT describe himself in connection with his or her profession AS ANYTHING other than — (a) an advocate and solicitor; (b) a lawyer; (c) a legal consultant (if qualified to be one); (d) a Commissioner for Oaths (if appointed as one); (e) a Notary Public (if appointed as one); or (f) such other description as may be approved by the Council from time to time. (2) A legal practitioner who is a regulated foreign lawyer must not describe himself or herself in connection with his or her profession as anything other than — (a) a foreign lawyer; (b) a legal consultant (if qualified to be one); or (c) such other description as may be approved by the Council from time to time. (3) Paragraph (1) does not prevent a Senior Counsel appointed under section 30 of the Act from describing himself or herself in connection with his or her profession as a Senior Counsel. (4) Paragraph (2) does not prevent a person who holds Her Majesty’s Patent as Queen’s Counsel, or holds an appointment of equivalent distinction of any jurisdiction, from describing himself or herself in connection with his or her profession as a Queen’s Counsel or as holding that appointment (as the case may be). (3) Lawyer’s Executive appointments (Rule 34; and First to Fourth Schedules PCR) NO acceptance of executive appointments in businesses ? 34(1) A legal practitioner must not accept any executive appointment associated with any of the following businesses: (a) any business which detracts from, is incompatible with, or derogates from the dignity of, the legal profession; (b) any business which materially interferes with — (i) the legal practitioner’s primary occupation of practising as a lawyer; (ii) the legal practitioner’s availability to those who may seek the legal practitioner’s services as a lawyer; or (iii) the representation of the legal practitioner’s clients; (c) any business which is likely to unfairly attract business in the practice of law; (d) any business which involves the sharing of the legal practitioner’s fees with, or the payment of a commission to, any unauthorised person for legal work performed by the legal practitioner; (e) any business set out in the First Schedule: Housing or estate agency business, Debt Collection business - Under section 3(1) of the EAA, an “estate agent”, subject to section 3(3), “means a person who does estate agency work, whether or not he carries on that or any other business”. Estate agency means any work done in the course of business for a client or any work done for or in expectation of any fee for a client - being work that is done - That relates to the introduction to the client of a third person who wishes to acquire or dispose of a property, or relates to the negotiation for the acquisition or disposition of a property by the client; or - after introducing to the client a third person who wishes to acquire or dispose of a property or the negotiation for the acquisition or disposition of a property by the client, in relation to the acquisition or disposition, as the case may be, of the property by the client.” - - INCOMPATIBLE for LAWYER TO BE HOUSING AGENT (PD3.8.1) it is incompatible to carry on the business of a housing agent in tandem with that of a lawyer. THe calling of a housing agent or “broker” will detract from the honour and dignity of the bar. S 83(2)(i) of the LPA states that “a solicitor may be struck off or suspended for cause if he/she carries on by himself/herself or any person in his/her employment any trade, business or calling that detracts from the profession of law or in any way incompatible with it, or is employment in any such trade, business or calling.“ COMMISSION AS FINDER’S FEE IS ALLOWED (PD3.8.1) Solicitor is not prohibited: If in the course of the solicitor’s practice, the solicitor can make an agreement with a prospective vendor or purchaser that he would be paid a commission as a finder’s fee if he could secure a purchaser or vendor to “broker” a deal in such circumstances. This is the Amended Rule - [not entitled to this commission as a finder’s fee] However, where in addition to securing the purchaser or the vendor, the solicitor goes further to act in the conveyancing transactionm, the solicitor will not be entitled to the benefit of the Amended Rule, which will no longer apply, and the solicitor must comply strictly with the Legal Profession (Solicitors’ Remuneration) Order (Cap 161, O1, 2010 Rev Ed); This Amended Rule is not meant to permit and is not to be read as permitting a solicitor to be an estate agent (as defined in section 3(1) of the EAA) in tandem with his law practice. To be an estate agent in tandem with being a solicitor continues to be prohibited - To be an executive in business entity which does not provide any legal services or law-related services => Second Schedule 34(4)PCR Subject to paragraph (1), a legal practitioner (not being a locum solicitor) 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. 34(5) Despite paragraph (1)(b), but subject to paragraph (1)(a) and (c) to (f), a locum solicitor 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. Conditions in Second Schedule 1. The business of the business entity — (a) must not jeopardise the professional integrity, independence or competence of the legal practitioner; and (b) must not detract from the standing and dignity of the legal profession. 2. The business entity must not be held out or described in such a way as to suggest — (a) that the business entity is a law practice; or (b) that any legal practitioner in the business entity provides services, carries on business, or is employed, as a regulated legal practitioner. 3. The involvement of the legal practitioner in the business entity must not impair, and must not be in conflict with, the legal practitioner’s duties — (a) in the law practice in which the legal practitioner practises; or (b) to any client of that law practice. 4. The files, records and accounts of the business entity must be kept separate from and independent of the files, records and accounts of the law practice in which the legal practitioner practises. 5. Where, in the course of dealing with the law practice in which the legal practitioner practises, a client of that law practice deals with, or is referred by that law practice to, the business entity, the legal practitioner must make full and frank disclosure of all of the following matters to the client: (a) the relationship (if any) between: (i) the business entity and that law practice; (ii) the business entity and every legal practitioner in that law practice who has any interest in the business entity; (b) the financial or other interests of each of the following in the business entity: (i) that law practice; (ii) every legal practitioner in that law practice who has any interest in the business entity; (c) that the statutory protection conferred on a client of a law practice under the Act (including but not limited to compulsory professional indemnity insurance coverage and the Compensation Fund maintained under section 75 of the Act), or under any subsidiary legislation made under the Act, may not be available to a customer of the business entity. 6. The client account of the law practice in which the legal practitioner practises, and any other account of that law practice used to hold money for a client of that law practice, must not be used to hold money for the business entity in its capacity as such, or for any customer of the business entity in the customer’s capacity as such. 7. Each account of the business entity must not be used to hold money for the law practice in which the legal practitioner practises in that law practice’s capacity as such, or for any client of that law practice in the client’s capacity as such. 8.—(1) The business entity must conduct its business at a separate and distinct address from the law practice in which the legal practitioner practises. (2) However — (a) both addresses may be in the same building; and (b) the business entity is not to be treated as conducting its business at an address by reason only that the address is the address of the registered office of the business entity When can the legal practitioner accept an executive appointment in a related law practice / business entity providing law-related services 34(3) Subject to paragraph (1), a legal practitioner may accept an executive appointment in a business entity which provides law-related services 34(2) Subject to paragraph (1), a legal practitioner in a Singapore law practice (called in this paragraph the main practice) may accept an executive appointment in another Singapore law practice (called in this paragraph the related practice), if the related practice is connected to the main practice in either of the following ways:  (a) every legal or beneficial owner of the related practice is the sole proprietor, or a partner or director, of the main practice; (b) the legal practitioner accepts the executive appointment as a representative of the main practice in the related practice, and the involvement of the main practice in the related practice is not prohibited by any of the following: (i) the Act; (ii) these Rules or any other subsidiary legislation made under the Act; (iii) any practice directions, guidance notes and rulings issued under section 71(6) of the Act; (iv) any practice directions, guidance notes and rulings (relating to professional practice, etiquette, conduct and discipline) issued by the Council or the Society. Apart from (2) to (5) where the legal practitioner can be an executive in a related law practice / business entity providing law related services / business entity that does not provide legal services or law-related services, (a) a legal practitioner in a Singapore law practice must not accept any executive appointment in another Singapore law practice; and (b) a legal practitioner must not accept any executive appointment in a business entit Any appointment in Third Schedule institutions Legal practitioner is still free to accept any appointment in any institution in the Third Schedule - S34(7) PCR Third Schedule institutions: The Society, The Academy, The Institute, The National University of Singapore, The Singapore Management University, The Singapore University of Social Science (9) In this rule and the First to Fourth Schedules — “business” includes any business, trade or calling in Singapore or elsewhere, whether or not for the purpose of profit, but excludes the practice of law; “business entity” — (a) includes any company, corporation, partnership, limited liability partnership, sole proprietorship, business trust or other entity that carries on any business; but (b) excludes any Singapore law practice, any Joint Law Venture, any Formal Law Alliance, any foreign law practice and any institution set out in the Third Schedule; “executive appointment” means a position associated with a business, or in a business entity or Singapore law practice, which entitles the holder of the position to perform executive functions in relation to the business, business entity or Singapore law practice (as the case may be), but excludes any non‑executive director or independent director associated with the business or in the business entity; “law-related service” means any service set out in the Fourth Schedule, being a service that may reasonably be performed in conjunction with, and that is in substance related to, the provision of any legal service. - Fourth Schedule services: - Any intellectual property service, including the registration (where applicable), and the provision of consultancy and advice on the management and enforcement, of copyright, trade marks, patents, designs, plant varieties and any other category of intellectual property referred to in the Agreement on Trade-Related Aspects of Intellectual Property Rights - Any tax service, including tax consultancy and advice - Any trust business or trust business service as defined in section 2 of the Trust Companies Act (Cap. 336) - Any company secretarial service, including the establishment and incorporation of a company - Any service as a continuing sponsor company for an entity any shares of which are listed for quotation on the Singapore Exchange Catalist - Any administrative, management, property or other service provided exclusively to a law practice or to a business entity referred to in rule 34(3), (4) or (5) - Any forensic investigation, document management or discovery service, or any other service relating to litigation support - Any voluntary liquidation service PD 3.8.1 - Executive Appointments and Engagement in Business, Trade or Solicitor is appointed as a company secretary Solicitor can be appointed as company sevreatry whether for the law practice’s own clients or for external corporate secretarial firm’s clients in exchange for consideration - - Must obtain prior approval from law practice: If the solicitor is acting as a company secretary for an external corporate secretarial firm’s clients in his capacity as an advocate and solicitor in exchange for consideration The solicitor cannot be engaged independently as a company secretary from his law practice - But if the solicitor acts as the company secretary for THE CLIENTS of an external corporate secretarial firm, these clients are the clients of the solicitor’s law practice even if they directly pay the fee for the solicitor;s services to the external corporate secretarial firm who then pays the solicitor. - Why? This is because acting as a company secretary for an external corporate secretarial firm’s clients in exchange for consideration amounts to the practice of law and can only be effected through a proper practice structure  - If the solicitor is engaged by the external corporate secretarial firm and is paid for services as a company secretary, the firm will also be a client of the solicitor’s law practice. - Section 2(1) of the Act defines “client” as a “person who, as a principal or on behalf of another... has power, express or implied, to retain or employ... a solicitor, a law corporation or a limited liability law partnership” for non-contentious business - Hence, any services that the solicitor renders as a company secretary in exchange for consideration should be effected through his/her law practice to avoid circumventing the requirements of the LPA, the Legal Profession (Solicitors’ Accounts) Rules, the Legal Profession (Professional Indemnity Insurance) Rules, and the Society’s Practice Direction Any issues of conflict of interest that could potentially arise between the law practice and the external corporate secretarial firm itself and/or between the law practice and that firm’s clients is for the law practice to mange - If it is a concurrent conflict of interest, - Conflict, or potential conflict, between interests of 2 or more clients (Rule 20 PCR - Conflict, or potential conflict, between interests of current client and former client (Rule 21 PCR) - Conflict or potential conflict between interets of client and interests of legal practitioner or law practice -> RUle 22 - If it is a successive conflict of interest - Conflict, or potential conflict, between interests of current client and former client (Rule 21 PCR): in this case the law practice may be precluded from acting against an external corporate secretarial firm and/or its clients in the future under rule 21 of the PCR 2015 and the general law. As a matter of good practice, the law practice should address specifically in the letter of appointment how it can act against an external corporate secretarial firm and/or its clients in the future The professional indemnity policy covering the law practice which the solicitor is in will extend to the solicitor’s services as a company secretaryONLY if the corporate secretary services provided THROUGH AND AS PART AND PARCEL of his law practice. - Professional indemnity will not cover if the work is provided outside or independently or his law practice Publicity and prohibition against touting Principle (S37 LPR) “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 practises or any other person, in circumstances which affect the dignity and standing of the legal profession.” Publicity can be done only according to certain rules Rule 41: 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, a partner or an employee; or (b) allow the employees of the law practice to do so. General responsibilities of the legal practitioner: Rule 42(1) PCR 2015: 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 Rule 42(2) PCR 2015: 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 Rule 42(3) PCR 2015: 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. Rule 42(4) PCR 2015: : a law practice must not use the “armorial bearings of the Law Society” for the purpose of publicity Publicity in Singapore (Rule 43,44 PCR) Responsibilities expected of the legal practitioner who publicises IN SINGAPORE the practice or law practice: Rule 43 PCR 2015 Rule 43(1)(a) any claim to expertise or specialisation can be justified; Rule 43(1)(b) the publicity does not make any direct or indirect mention of — (i) any past case in which, or any client for whom, the legal practitioner, the law practice or any member of the law practice had 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 (ii) the success rate of the legal practitioner, the law practice or any member of the law practice; and Rule 43(1)(c) the publicity does not make any comparison or criticism in relation to the fees charged, or the quality of the services provided, by any other legal practitioner or law practice. Factors that legal practitioner can take into account when justifying its claim to expertise or specialisation Rule 43(2) For the purposes of paragraph (1)(a), the following factors may be taken into account in justifying any claim to expertise or specialisation: - (a) academic qualifications; - (b) experience; - (c) proportion of working time involved; - (d) level of success achieved;  - (e) complexity of law and practice; - (f) significance of the matters involving the legal practitioner or the law practice of which the legal practitioner is a director, a partner or an employee; - (g) assessment by peers. Legal practitioner who practiced in a law practice is appointed to te judiciary Rule 43(3) When a legal practitioner who practised in a law practice is appointed to the judiciary — (a) any publicity relating to the law practice must not refer to the legal practitioner’s appointment to the judiciary during the tenure of the legal practitioner’s judicial office; but (b) this paragraph does not prohibit the inclusion of the legal practitioner’s name in the publicity, if the name appears as, or forms part of, the name of the law practice DO not permit touting Rule 43(4): The rules do not permit the doing of anything which may reasonably be regards as touting by - a legal practitioner, a law practice, or a director, a partner or an employee of a law practice. When filming at law practice’s office premises, the name of the law practice should not be disclosed in any of the scenes as this disclosure may reasonably be regarded as touting under Rule 43(4) PCR 2015 Publicity cannot be misleading, deceptive, inaccurate or false Rule 44(1) A legal practitioner must not publicise the legal practitioner’s practice, or the practice of the law practice of which the legal practitioner is a director, a partner or an 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) may reasonably be regarded as being misleading, deceptive, inaccurate, false or unbefitting the dignity of the legal profession; or - Rule 44(2) Publicity is considered to be misleading, deceptive, inaccurate or false if - (a) it contains a material misrepresentation; - (b) it omits to state a material fact; - (c) it contains any information which cannot be verified; or - (d) 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 (c) the Council may determine to be an undesirable manner of publicising the practice of a legal practitioner or law practice. It may reasonably be regarded as being misleading, deceptive, inaccurate or false if the names of foreign lawyers or consultants who are not qualified to practice in Singapore and are not considered employees of law practices in Singapore are stated in the law practices letterhead. - Legal practitioners named on a law practice’s letterhead should be limited to:  - (a) partners or directors of the law practice; and - (b) consultants, foreign lawyers or legal associates employed by the law practice in accordance with Singapore’s legislative and regulatory requirements. - For TV COmmercials (PD 6.2.1) For TV COmmercials advertising the law practice, legal practitioners must ensure that it is not reasonably regards as misleading under R 44(1)(b) especially because the commercial, which is usually brief, is primarily viewed by laypersons who can easily form misimpressions that are difficult to correct. Examples of a TV Commercial that may be reasonably regarded as misleading - (a) it contains a material misrepresentation (eg, representation that the practice is a leading family law practice when it does not have expertise or experience in family law); - (b) it omits to state a material fact (eg, failure to state that the law practice only acts in uncontested divorce matters if the practice has no expertise or experience in contested divorce matters); - (c) it contains any information which cannot be verified (eg, only a contact number is given without stating the name of the law practice); or - (d) it is likely to create an unjustified expectation about the results that can be achieved by the legal practitioner or his law practice (eg, stating that the law practice will be able to recover party and party costs in a civil matter) - Suggests that other law practices overcharge their fees or sets our price lists However, it is considered proper for the commercial to refer generally to fixed fee arrangements to provide peace of mind and meet budgetary concerns. Still, advisable that, for proper compliance with rule 17 of the PCR 2015, a legal practitioner’s duty to disclose detailed information relating to fees would be best discharged by personally explaining it to the client as opposed to highlighting it in a brief TV advertisement. Publicity through the law practice or legal practitioner’s good causes (Publicity in Singapore) Rule 45(4): “good cause” includes any registered charity and any other benevolent cause or cause concerned with the promotion of education, sports or the art Rule 45(3) The legal practitioner or law practice may be identified in the name of any prize or scholarship as the endower of the prize or scholarship at any school or education institution Rule 45(2) Where a legal practitioner or law practice contributes to any good cause, the legal practitioner or law practice must take reasonable steps to ensure that any public acknowledgment of the contribution does not state any information pertaining to the legal practitioner or law practice except — (a) in the case of a contribution made by a legal practitioner, the legal practitioner’s name, the fact that the legal practitioner is a legal practitioner, and the name of the law practice of which the legal practitioner is a director, a partner or an employee; and (b) in the case of a contribution made by a law practice, the name of the law practice. Third party publicity (Publicity in Singapore) Rule 46 PCR 2015 (a) a legal practitioner may allow the legal practitioner’s practice or the practice of the law practice of which the legal practitioner is a director, a partner or an employee; and (b) a law practice may allow its practice, to be publicised 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. No Publicity through giving free legal advice (Publicity in Singapore) S47(2) In the course of giving free legal advice to any person at or through any facility established with a view to providing legal assistance to members of the public, a legal practitioner must take reasonable steps to ensure that no information pertaining to the legal practitioner is publicised except the legal practitioner’s name, the fact that the legal practitioner is a legal practitioner, and the name of the law practice of which the legal practitioner is a director, a partner or an employee. 47(3) A legal practitioner must not in the course of giving the free legal advice referred to in paragraph (1) — (a) distribute any of the legal practitioner’s business cards or any brochure, leaflet or pamphlet relating to the legal practitioner’s practice or the practice of the law practice of which the legal practitioner is a director, a partner or an 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. Rule 47 DOES NOT APPLY to Answering questions on legal matters on non legal publications (newspapers etc) - Rule 47 of the PCR 2015 does not apply to the answering of questions by legal practitioners on legal matters in non-legal publications, as a non-legal publication is not a ‘facility’ which holds itself out as giving legal assistance to the public - permissible for the legal practitioner to be identified by his/her name, the fact that he/she is a legal practitioner, and the name of the law practice of which the legal practitioner is a director, a partner or an employee and particulars may be given of any special qualifications or specialised knowledge directly relevant to the subject-matter of the publication.  - Because answering questions can entail legal consequences in the event wrong advice is given resulting in readers/listeners sustaining loss who hae adopted such advice, legal practitioners ma wish to include an appropriately worded disclaimer for the enquirer to seek independent legal advice before acting on any advice set out in the publication - (PD 6.2.1_ Advertisement and media publicity in Singapore Not improper for the legal practitioner to present a news show on the radio or TV Examples of advertisements - [ALLOWED] ADvertisements through the press or TV is allowed because there is no added danger of direct-in-person solicitation. Also, in the absence of the element of direct in-person solicitation in advertisements through the press or TV, the general public’s need for information about legal services would outweigh the concerns arising from the commoditization of legal services - Hence, advertisements through the press or TV would not be “unbefitting the dignity of the legal profession” under rule 44(1)(b) of the Legal Profession (Professional Conduct) Rules 2015 or “likely to diminish public confidence in the legal profession or to otherwise bring the legal profession into disrepute” under rule 44(1)(a) of the PCR 2015. - [NOT ALLOWED] Advertisements via the distribution of flyers in public places, would be touting or be reasonably regarded as touting - [ALLOWED] TV Commercials advertising law practice must not be reasonably regarded as misleading Specifically for filming at law practice’s office premises - every legal practitioner of the law practice is responsible for ensuring that the filming complies with all the rules governing publicity in Singapore, which are found in Part 5 of the PCR 2015.The name of the law practice can appear in the closing credits as acknowledgement of the law practice’s participation - As per Rule 6 of the PCR 2015, every legal practitioner of the law practice must comply with his/her ethical obligations in rule 6 of the PCR 2015 to “maintain the confidentiality of any information which the legal practitioner acquires in the course of the legal practitioner’s professional work” by taking all necessary measures to ensure that no confidential information is disclosed to the film crew or any other third party during the filming within the office premises. For example, all confidential files and documents should be securely stored out of sight during the filming. Complimentary advertisements in newspaper - It is not improper for a law practice to accept an offer of complimentary advertising in a newspaper so long as the law practice ensures that the advertising complies with Rules 43 and rules 44 of the PCR - the description of the specialisation of the law practice - in the advertisement must be in accordance with rules 43(1)(a) and 43(2) of the PCR 2015. (PD 6.2.4) Publicity by legal practitioners through public appearances and contributions to publications Subject to Part 5 of the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (‘PCR 2015’), where a legal practitioner: (a) makes an appearance on the radio or television; (b) gives a talk or lecture; (c) gives an interview to the press; (d) contributes an article or writes a letter to the press; or (e) edits or writes a book or other publication on a legal or non-legal subject, he/she may be identified by name, the fact that he/she is a legal practitioner, and the name of the law practice of which the legal practitioner is a director, a partner or an employee and particulars may be given of any special qualifications or specialised knowledge directly relevant to the subject-matter of the publication or appearance. B. Organising Seminars A law practice can organise and advertise a seminar for members of the public to be conducted at its premises as a means of self-promotion and charge admission fees. However, the law practice must ensure compliance with the PCR 2015 at all times. Publicity outside Singapore 48.—(1) A legal practitioner may publicise the legal practitioner’s practice, or the practice of the law practice of which the legal practitioner is a director, a partner or an employee, in a country other than Singapore, and where the legal practitioner does so, rules 43 to 47 do not apply. (2) Where a legal practitioner publicises the law practice of which the legal practitioner is a director, a partner or an employee in a country other than Singapore, the legal practitioner must ensure that the publicity is not conducted in a manner that is contrary to the laws of that country. The jurisdiction where publicity is considered to be conducted Rule 49 PCR 2015: (a) Publicity is conducted in a jurisdiction in which the publicity is reasonably expected to be received or accessible in the normal course of events. (b) Publicity is not conducted in a jurisdiction if the receipt of the publicity in the jurisdiction is incidental. PD6.2.3 Identification of legal practitioners or law practice Legal practitioners named on a law practice’s letterhead should be limited to: (a) partners or directors of the law practice; and  (b) consultants, foreign lawyers or legal associates employed by the law practice in accordance with Singapore’s legislative and regulatory requirements. Rule 43(1)(a) of the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (‘PCR 2015’) requires that any claim to expertise or specialisation can be justified. Only the names of persons who are listed in paragraphs (a) and (b) above are permitted in the letterheads of their law practices Because Bills, notepaper, faxes emails, brochures and websites, may describe the law practice’s relationship with the individual foreign lawyer, it needs to be stated that the individual foreign lawyer who are not qualified to practice in Singapore are not employees of the law practice - The following wording would be the minimum necessary for this purpose: - “XYZ, qualified in [name of foreign jurisdiction] to practise [foreign law], not registered as a foreign lawyer practising in Singapore, not regulated by the Law Society of Singapore and not a member of the firm.” - Contravention of this illustration may reasonably be regarded as being misleading, deceptive, inaccurate or false publicity under rule 44(1) of the PCR 2015 read with rule 44(2) of the PCR 2015. - GN6.1.1 Ethics and the use of information TEchnology- Emails, practising law on the internet, Publicity Because the law practice’s website can be used as an advertising tool or to provide generic legal information that can be accessed by the general public or clients of the law practice. If the law firms were to give legal advice, it could give rise to risks and attendant obligations. Hence, the law practice may wish to, therefore, consider appropriate disclaimers. If no fees are paid or shared, any participation in an online introduction service or referral service carried out in such a way as to ‘unfairly attract work’ to the law practice would be improper given the terms of section 83(2)(b) and/or section 83(2)(h) of the LPA. USING EMAIL Law practices should adopt an email policy 1. Emails are suitable for short communications and for the sending of documents that can be printed by the recipient. 2. Legal practitioners must comply with the Council’s directions about corresponding with the client: a. should ensure that the e-mails do not contain particulars that a law practice will not include in its correspondence. E-mails should identify the sender and his/her designation in the law practice 3. Law practices are advised to draft tier own email policy that ensures the law practice to have PROPER SUPERVISION over their staff’s use of email in their practice. Also, the law practice should consider implementing polices for the sending and receiving of private e-mail, giving legal advice or opinions via e-mail, sending privileged documents via e-mail, and adequate supervision for incoming and outgoing e-mail.  a. Under Rule 32 of the PCR 2015, a legal practitioner must “exercise proper supervision over the staff working under the legal practitioner in the law practice”. 4. If the email is used as a communication medium, the system should be checked regularly for incoming e-mail and e-mails are distributed promptly to recipients. There should be an automated out-of-office response used when a legal practitioner or a member of staff of management level or equivalent seniority is away from the office for a day or more. 5. Every law practice should install and maintain anti-virus software to ward against such risks. 6. REcommendations that the council has for law practices - Keep a record of all outgoing and incoming e-mails sent under a client’s file be kept whether as a paper record on file or stored by electronic means - as a matter of courtesy to a fellow legal practitioner, important or urgent messages, notices or documents are not sent by e-mail without prior notification of their dispatch. How to ensure client confidentiality when using email for corresponding with clients - Under rule 6(2) of the PCR 2015, a legal practitioner must not knowingly disclose any information which is confidential to his/her client and is acquired by the legal practitioner (whether from the client or from any other person) in the course of the legal practitioner’s engagement. The law practice should thus take appropriate measures to preserve confidentiality by way of using encrypted email or secured lines - If the law practice cannot ensure or has doubts as to the secured nature of communication via e-mail, then the law practice should obtain the prior informed consent of his/her client on the use of e-mail as a means of communication. - Another means to ensure confidentiality: Upon a legal practitioner is giving professional undertakings via email A law practice will be advised to exercise caution when accepting a professional undertaking via e-mail and to take steps to verify that the purported sender had in fact sent the undertaking given via e-mail. PRACTICING LAW ON THE INTERNET - VIRTUAL LAW FIRM A lawyer is not prohibited to practice law via the internet. But the problem with a virtual law firm - S25(1)(a) of the LPA, however, requires every practising solicitor (as defined by the Act) to declare the “principal address, and every other address in Singapore, of each Singapore law practice, Joint Law Venture and foreign law practice in which [he/she] will be practising”. - This information is recorded under section 27(1) of the LPA in the annual register of practitioners maintained by the Registrar of the Supreme Court and the Council of the Law Society. - Given the terms of section 25(1)(a)(iv) of the LPA, law practices must have a place of business at which clients may meet their solicitor and where mail and telephone calls are - received. Therefore, a ‘virtual office’ where the business of a law practice is conducted entirely  - online is not allowed. - PRACTICING LAW ON THE INTERNET - CLIENT IDENTIFICATION ON THE INTERNET A problem is that if a law practice wishes to g ive online advice, there is a possibility that the law practice may not meet the client and it is essential that a law practice takes necessary steps to verify their client’s identity and their legal capacity. If the legal practitioner is taking instructions from a person who is acting on behalf of the lawyer’s licent, there is an obligation under rule 5(5) PCR 2015 for the legal practitioner to ensure that the person has the authority to give instructions on behalf of the client. In the absence of any evidence, the rule requires the legal practitioner must “obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions”. PRACTICING LAW ON THE INTERNET - CLIENT CARE The standards of due diligence Rule 5(2) [standards of adequate professional service] applies even when lawyers conduct their clients’ businesses on the Internet. Accordingly the clients must receive adequate information on fees and costs and the progress of the client’s matter. E-mails must, with reasonable dispatch, be responded to and proposals of settlement and positions taken by other parties explained in a clear manner. Touting and Referrals Tout = attempt to sell (something), typically by a direct or persistent approach. Rule 39(1) PCR 2015: No Touting or reasonably inference of touting 39.—(1) A legal practitioner or law practice 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 - Definition of touting: causing “the potential client may be subject to undue influence, intimidation and over-reaching because of the presence of his lawyer or his ‘tout’ (PD 6.2.1) - Using phrases that can be construed as an invitation to employ the legal practitioner (PD7.4.1) - Distributing flyers or leaflets to the general public in public places can be an act which may be reasonably regard as touting under rule 43(4) of the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (‘PCR 2015’), unless the recipients had requested such flyers or had previously indicated a desire to know more about the law practice. - Commentary by pinsler: seeking business in an unethical manner Rule 39(2) PCR 2015: Referred client: no reward etc Where there is reason to believe that a client is referred to a legal practitioner or law practice 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 referrer to undermine the professional independence of the legal practitioner or law practice; (b) must not reward the referror by the payment of any commission or other form of consideration; - Eg The participation in any Internet referral schemes which requires the law practice to pay a fee or share fees paid for legal services referred would be a breach of the LPA. (GN6.1.1) - Eg. It is an offence if a solicitor (as defined by the Act) has “tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself, of any other advocate and solicitor” or “directly or indirectly, procured or attempted to procure the employment of himself, of any advocate and solicitor … to whom any remuneration for obtaining such employment had been given by him or agreed or promised to be so given” (GN6.1.1) (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 referror does not affect in any way the advice given to the client; (f) must ensure that the referror 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 appropriate stages of the transaction - Rule 39(2)(g) is a logical and commonsensical requirement because there was a “greater danger that the client might be in a vulnerable position” - By directly communicating, The advocate and solicitor, with his position as a fiduciary and his standing as a professional, had to personally ensure that the referred client’s interests were not in any way undermined by those of the referror. - What does communicating directly with the client constitute - the advocate and solicitor should in fact meet personally with the client and also thereafter whenever it was necessary. But it is unnecessary for the advocate and solicitor to attend to every single detail of the transaction in question with the client. It depends on the nature of the transaction, action required, accepted practice in the egal profession. - As a general rule of thumb, reasonable delegation was permitted; but a substantial abdication of the advocate and solicitor’s responsibility to the client was not Rule 40 PCR 2015: Agreement for Referrals Rule 40(1) – when a legal practitioner or law practice enters into any agreement for the referral of any conveyancing service, the legal practitioner or law practice must ensure that the agreement is made in writing and contains the following terms: (a) the referror undertakes in the agreement to comply with these Rules; (b) the legal practitioner or law practice is entitled to terminate the agreement, if there is reason to believe that the referror is in breach of any term of the agreement; (c) any publicity of the referror (whether written or otherwise), which refers to any service that may be provided by the legal practitioner or law practice, must not suggest any of the following: (i) that the conveyancing service is free; (ii) that different charges are payable for the conveyancing service, depending on whether the client instructs the legal practitioner or law practice; (iii) that the availability or price of any other service offered by the referror, or by any party related to the referror, is conditional on the client instructing the legal practitioner or law practice; (d) the referror must not do anything to impair the right of the client not to appoint the legal practitioner or law practice, and must not influence in any way the right of the client to appoint a legal practitioner or law practice of the client’s choice TERMINATION of the agreement for referral Rule 40(2) – termination of the agreement where (a) the referror is in breach of any term referred to in paragraph (1); or (b) there is reason to believe that the legal practitioner or law practice is in breach of any such term Rule 40(3) Where the legal practitioner or law practice has terminated an agreement under paragraph (2), the legal practitioner or law practice — (a) may continue to act in matters for which the legal practitioner or law practice was instructed prior to the termination; but (b) must not accept any further referrals from the referrer Law Society of Singapore v Chong Wai Yen Michael 2 SLR 113 – procuring conveyancing business by promise of payment of referral fees to real estate agents. The agreement which the lawyer entered into with the company involved referrals of conveyancing work to the him and/or his firm, and, viewing it together with the publicity flyer shows that the payments to the company was in consideration for such referrals Court charged the four respondents for making referral fee payments to the company in consideration of referrals of conveyancing work  - THe publicity flyer of the company shed light on the operations of the company that it was meant to entice housing agents to use the company’s services with the promise of financial reward. Upon such referral of conveyancing work to Asprez, housing agents were to select a lawyer from Asprez’s panel of lawyers to provide legal representation FACTS: five law firms had given gratifications to a company named Asprez Loans Connections Pte Ltd (“Asprez”) in consideration for Asprez referring conveyancing related matters to them. the main function of Asprez was to procure conveyancing business by promise of payment of referral fees to real estate agents. In return, the real estate agents were expected to refer clients to Asprez. The firms of the four respondents were, at different periods, on Asprez’s panel of lawyers. Law Society of Singapore v Udeh Kumar s/o Sethuraju 3 SLR 875 – responsibility to communicate directly with the client when the client is referred by a third party. AS per Rule 39(2) PCR, An advocate and solicitor was under a personal responsibility to communicate directly with the client when the client was referred to the advocate and solicitor by a third party OTF, The lawyer breached Rule 39(2) PCR. He not only failed to personally attend to the Complainant on 8 October 2009 but also did not bother to attend or meet or communicate directly with the Complainant at all throughout the period of the retainer. There is no evidence that the respondent personally tried to communicate directly with the Complainantt. Furthermore, his breach took place systematically and consistently over a period of a few months taht “was certainly more than an oversight or mere negligence”. Hence there is a “total abdication of his duty” pursuant to Rule 39(2) PCR which constitutes “Grossly improper” conduct within the meaning of S83(2)(b) of the Act Law Society of Singapore v Lee Cheong Hoh 1 SLR(R) 197 - fee sharing with Employee. Court held that the 10% payment was not remuneration for work done. Instead, the payment was in the nature of a commission or gratification where the employee was engaged to bring in business for the firm instead of doing office work relating to motor accidnet claims - This was because Mark brought with him about 200 pending files from his previous firm when he joined; Mark continued bringing in new clients and businesses after he joined; the 10% payment was based on net fees collected for work done on third-party claims; Mark was the only employee being paid on this basis; and upon leaving, about 50% of the files or clients also left with him. This was clear proof that the 10% payment was because of hte business brought in by the employee. - Furthermore, the respondent solicitor’s argument that hte “0% was also intended to cover Mark’s transport and overtime claims, was merely a camouflage. Those were put  in for the purposes of appearance and to create room for argument”. THere is no real difficulty to process transport and overnight claims. What Lee had done clearly fell within limb (d). Lee had given to Mark gratification, for having procured the employment of his firm, out of fees paid to him for his services. What Lee had done also came within limb (e) because he had directly procured the employment of his firm through Mark to whom he had promised and paid a commission of 10% for obtaining such employment Penalty: 3 year suspension period because this was a serious misconduct, “ A clear message must be conveyed to the profession as a whole that such unprofessional and unethical conduct could not be condoned. It also undermined the integrity and dignity of the profession.” FACTS: Respondent lawyer employed an employee (previously a clerk in another law firm) on unique employment terms where in addition to the monthly basic salary, he was entitled to 10% of all professional fees collected by the firm in respect of third party claims (“the 10% payment”). This term was not stated in writing. The Law Society of Singapore v Tan Buck Chye 1 SLR(R) 581 - procuring conveyancing work by offering monetary compensation to referrers The respondent had come up with specific proposals based on the fees he would stand to gain if such referrals were made and even told Chia that his real estate agents needed only to state Chia’s name and fax the cases over to him for them to earn the “incentive” payment. Penalty: Court held that suspension was for 6 months due to the strong mitigating factors in the present case; otherwise, court would impose a more severe sanction Mitigating factors are relevant in determining the penalty because there must be a “balancing of itnerests between the rights of the public and that of the respondent” 1. REpsondent lawyer is guilty of an attempt but there was no completed transactions. The respondent did not actually consummate any of the transactions with the so-called “agents”. 2. The reason that the respondent did not consummate the transactions was a voluntary decision 3. The lawyer did not attempt to justify himself when faced with the charges; instead he pleaded guilty to the charges at hte first available opportunity 4. No proven dishonesty on the part of hte respondent; hence, no justification for striking the respondent lawyer off the roll Factors that cannot be taken into account for mitigation: the fact that the respondent lawyer was the sole breadwinner, that his wife had ceased work, that they had three young children and that the respondent had voluntarily ceased practice after the decision of the DC had been released, What should the respondent lawyer have done? Should have consulted his partners before he actually made the prohibited offres to agents, the manifestation of such community in the context of the present proceedings has saved the respondent from actually following through with the transactions concerned FACTS:The respondent lawyer attempted to procure conveyancing work by offering monetary reward to individuals who referred such work to him. he discussions between the respondent and the various individuals were not just preliminary contacts and that the respondent had made a direct attempt to procure employment by promising or agreeing to give remuneration for such procurement in breach of s 83(2)(e) of the Act The Law Society of Singapore v Lillian Bay Puay Joo 2 SLR(R) 316 – sting operations designed to obtain evidence of touting by law firms. NAture of bribery or corruption involves the “inducement of a public official or a private party to do a favour in exchange for a bribe or gratification. Jenny’s offer was not a bribe or a corrupt act for two reasons: 1. (a) Jenny did not have any corrupt intent in persuading her targets to agree to pay referral fees. her only objective was to expose the professional misconduct of the respondent. If the scheme had been implemented, she would have paid the respondent a fee for work done, from which she would receive a referral fee (as in the case of Rayney Wong CA …). She would be out of pocket in receiving back only a portion of her own money 2. and (b) the solicitor in Lilian Bay was not being asked to do a favour for Jenny, but would instead be doing herself a favour if she accepted the conveyancing work offered to her. 3.. What is wrong, professionally, is for the respondent to agree to pay a referral fee to Jenny FACTS: the respondent attempted to procure the employment of herself to act in a conveyancing matter or matters, by offering to pay one Jenny Lee Pei Chuan (“Jenny”): (a) a percentage-based referral fee of 10% of the respondent’s professional fees in a private property purchase to be referred to her; and/or (b) a flat referral fee of $100 in Housing and Development Board (“HDB”) sale or purchase cases referred to her in future, Wong Keng Leong Rayney v Law Society of Singapore 4 SLR(R) 934 Should the evidence of touting be excluded even if it was obtained through illegal means? Should not be excluded. Here, the evidence will still be admissible in court. The conduct of the estate agent was not illegal, the recording was simply improper and unfair because it involves deception. WHy? - “The administration of justice does not risk being brought into disrepute simply because unscrupulous solicitors have their modus operandi for improperly attracting business exposed by means of private entrapment. As the Attorney-General persuasively submits (see ), in the ultimate analysis, it cannot be gainsaid that the  course of justice would not be facilitated if such private entrapment evidence is deemed inadmissible on policy considerations. The broad policy considerations I have earlier spelt out also serve in a very general sense to underscore and justify the current evidential case law, which unequivocally tilts the balance in favour of excluding evidence only in exceptional cases such as those involving prior illegality in the procurement of the evidence.” - , inasmuch as there is a compelling public interest in ensuring that investigators do not violate the very rule of law that they purport to uphold by adopting improper methods to procure evidence, there is also a competing and equally pressing public interest to weed out unethical and malign practices within the legal profession. Court in obiter held that the scope of the court’s discretion to exclude evidence would extend beyond unfairness at trial to the preceding circumstances in which evidence was obtained - In obiteer, court remarked that there should be a broadening of court’s discretion to exclude evidence ” there will be particularly egregious instances of misconduct where the courts should reject evidence that has been procured in a manner that might be inimically repellent to the integrity of the administration of justice. This will protect those who should not be convicted contrary to the public’s sense of justice” - For example, where the law enforcement authority has acted in a particularly unacceptable manner towards the accused in the course of interrogation or otherwise, a court might hold that the prejudicial effect of such behaviour on the accused’s rights and the public interest in the integrity of the administration of criminal justice would override the probative value (whatever its degree) of his admissible statement No distinction between state-directed and private entrapment - “ entrapment, whether at the hands of the state or of a private party is irrelevant to the conviction of the accused”, there is no different set of legal rules for state-directed nad private entrapment FACTS: Complainant (Estate agent) claimed that the lawyer had agreed to grant here a referral fee for having procured work for the applicant’s firm.The evidence of the respondent lawyer agreeing to grant the complainant a referral fee was obtained by illegal or improper means. an undisclosed law firm had employed an investigator to investigate whether certain competing law firms were offering referral fees to estate agents in order to attract more referrals, thereby illegitimately boosting their business. THe complainant was instructed by the investigator to pose as an estate agent for a fictitious prospective purchaser in an effort to probe whether the applicant would fall for the bait. Unknown to the applicant, his meetings with Lee had been secretly recorded (“the recorded conversations”) and these recordings formed a substantial part of the evidence The Law Society of Singapore v Tay Guat Neo Phyllis 2 SLR(R) 239 - attempt to procure. In any event, a test to determine whether or not entrapment or illegally obtained evidence should be excluded was not necessary. Section 2(2) of the the EA does not grant any discretion to exclude evidence simply on the basis that it has been improperly obtained (whether the impropriety is general in nature or takes the form of entrapment or illegal conduct), the decision in Summit is inconsistent with the statute Court held that it is “not necessary to draw any distinction between entrapment evidence an illegally obtained evidence” interms of their admissibility in public prosecutions - Definition of entrapment involves unlawful conduct by the state or its agents in instigating, cajoling or pressuring the defendant into committing an offence which he would not otherwise have done…the evidence is then used to prosecute the defendant for the offfence which he was instigated to commit”. Entrapment is not the same as illegally obtained evidence that “merely providing the def with an opportunity to commit the offence” (). “Illegally obtained evidence shares the element of unlawfulness, but the element of instigation is absent, and it does not always, unlike entrapment evidence, provide evidence of the actus reus of the offence.” The respondent did offer a referral fee to Jenny in the form of shopping vouchers, and that she did so with a view to procuring conveyancing work from Jenny. Jenny’s conduct In procuring the evidence against the respondent was NOT OBTAINED ILLEGALLY. Why? 1. First, the investigator did not have any corrupt intent in doing what she did as her only objective was to expose the professional misconduct of the respondent. Secondly, the respondent was not being asked to do a favour for the investigator posing as a real estate agent, but the respondent lawyer would instead be doing herself a favour if she accepted the conveyancing work offered to her 2. There was no evidence of a criminal conspiracy among the instructing solicitors, Dong Security and Jenny to injure the respondent in her practice. Jenny (individual investigator) “merely laid the ground for the respondent to make the offer, which the respondent went on to do. The respondent would have known that it was wrong of her professionally to offer the referral fee, and yet, she did so.” There was no offer made by Jenny to introduce conveyancing transactions to teh respondent in exchange for referral fees but she “(asked) whether there was anything in it for her to bring conveyancing work to the respondent”. All the respondent lawyer had to do was to say “no”. 3. instructing solicitors had not used illegal means to obtain evidence against the respondent. Jenny’s fictitious represebtation of the conveyancing transaction did not induce the respondent to offer the referral fee. The respondent would have done exactly the same thing if the fictitious transaction had been genuine. “he evidence shows beyond any reasonable doubt that the respondent had given a positive response to the opportunity presented by Jenny to offer referral fees even without knowing who Jenny was 4. Jenny’s conduct was also not “unsanctionable” under the decision of SM Summit Holdings Ltd v PP 3 SLR(R) 138 (“Summit”) “There is no public interest in the members of the public committing crime in order to expose crime” and equally, “, there is also no public interest in law enforcement officers committing crime in order to expose crime.”  a. The unsanctionable conduct in SM Summit refers to the specific conduct of the investigator: “[t]he mode of obtaining such evidence [which] cannot possibly be justified”. The mode referred to was the manner in which the private investigator in that case (“JC”) executed his plan, which the court found was particularly malignant and a threat to the rule of law. It was on the basis of that finding that the court said that JC’s evidence should have been rejected”. -> summit exception is not good law b. Is there a difference between entrapment by a state agent and entrapment by a private agent such that even if Jenny’s act was not illegal it is still unsanctionable? No difference i. Not true that illegal conduct would not be acceptable if undertaken by a private party, it would be acceptable if undertaken by law enforcement officers. “ the public interest in arresting and punishing those guilty of serious crimes should be balanced against the public interest in ensuring that the administration of justice is not brought into disrepute by the courts overlooking egregious illegal conduct on the part of law enforcement officers.” c. d. 5..” - The motive of the solicitor instructing the investigator is irrelevant to the disciplinary charges, “irrelevant in the disciplinary proceedings against the respondent and would not represent an abuse of the disciplinary process.” Becuase the investigator individual’s conduct in obtaining the evidence of the respondent’s professional misconduct did not amount to entrapment and that Jenny had not committed any illegal act in so doing are sufficient for us to dispose of this case and to find that the Law Society has made out the disciplinary charges against the respondent Penalty: In determining the appropriate penalty, it was pertinent that the facts showed that was a case of a solicitor who wanted to blame everyone except herself for doing something which she must have realised was unprofessional. There was a complete absence of any feeling of guilt or any remorse for her misconduct. In the circumstances, a period of suspension from practice of 15 months was appropriate: at and. FACTS: certain lawyers had hired a private investigation firm to obtain evidence that the respondent’s law practice had been involved in touting for conveyancing work. The security firm engaged an individual (J) to run the operation and she proceeded to represent herself as a real estate agent who might want to engage the respondent to act for her client in the purchase of a property and they eventually met. J made audio and video recordings of a telephone discussion and meeting respectively with the respondent (without the latter’s knowledge). After that meeting, J made a complaint against the respondent to the Law Society in connection with the respondent’s offer to pay a referral fee for procuring conveyancing work Restrictions on procuration of work: LPA, s 83(2)(d)-(g) and LPA, s 78(1)(e) S83(1): The Supreme Court has Power to strike off roll of advocates and solicitors, suspended from practice for a period not exceeding 5 years; to pay a penalty of not more than $100,000; to be censured; or to suffer the punishment referred to in paragraph (c) in addition to the punishment referred to in paragraph (b) or (d). Showing due cause: S83(2)(d)-(g) “ Both limbs cover very much the same evil, with the emphasis in limb (d) on payment and limb (e) on procurement.” Law Society of Singapore v Lee Cheong Hoh 1 SLR(R) 197 Due cause may be shown by proof that an advocate and solicitor: (d) has tendered or given or consented to retention, out of any fee payable to him or her for his or her services, of any gratification for having procured the employment in any legal business of himself or herself, of any other advocate and solicitor or, in relation only to the practice of Singapore law, of any foreign lawyer registered under section 36B; (e) has, directly or indirectly, procured or attempted to procure the employment of himself or herself, of any advocate and solicitor or, in relation only to the practice of Singapore law, of any foreign lawyer registered under section 36B through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or her or agreed or promised to be so given; (f) has accepted employment in any legal business through a person who has been proclaimed a tout under any written law relating thereto; PD 7.4.1: in a transaction where the legal practitioner is permitted to act for more than 1 client in a transaction When corresponding with another party in the client’s transaction where a legal practitioner is permitted to act for more than one client, the legal practitioner should be mindful of the danger of using phrases which can be construed as an invitation to employ the legal practitioner, which will infringe the rule against touting. Even if the legal practitioner has been informed by his/her client that the other party wishes to retain the legal practitioner to act for him/her, it is suggested that his/her initial correspondence to the other party should take the following form: ““I understand from my clients that they have arranged to sell to you the above property at the price of ____ subject to contract, and that you would like me to act on your behalf. While I should be happy to act for you if you so wish, I would point out that you are not bound to employ me and are entitled to instruct any other legal practitioner of your own choosing. Will you please therefore, either confirm in writing your wish that I should act for you, or let me have the name and address of the legal practitioners who will act for you.” THis sentence DOES NOT make clear that the recipient is entitled to instruct a legal practitioner of his own choice: “If you want us to act for you, please instruct us accordingly, or if you have your own legal practitioners, please instruct them to contact us.” When asking the other party who will be acting for them in a conveyance, the letter should take the following form (according to Sir Thomas Lund, “Guide to the Professional Conduct and Etiquette of Solicitors” (The Law Society, 1960) at page 7): “I understand from my clients that they have arranged to sell to you the above property at the price of _____ subject to contract. In order that the matter may proceed, will you please let me know the name and address of the [legal practitioners] who will be acting for you.” PD 6.1.2 Website that have hyperlinks to law practices’s websites Websites (Eg property agent’s website) are allowed to hyperlink to law praactices’ websites - property agents’ websites) that hyperlink to law practices’ websites for the purposes of assisting the property agents’ potential clients ARE ALLOWED BUT there must be no form of financial arrangement between the property agent and the law practice HOWEVER the description of the hyperlink must not mislead viewers by suggesting that the first website is in a position to give legal advice, or that the law practice is formed by the first website to provide legal consultation on matters relating to the website (Eg real estate matters), or that the viewer has to exclusively use the services of the law practice. Otherwise, this may constitute an offenc