_commit_at,_commit_hash,_id,_item,_version,_commit,title,content,pdf-link,pdf-content,timestamp,url,unique_id,_item_full_hash,_changed_columns 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,1,1,1,1049,"In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor","In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Goh Yng Yng Karen (the Complainant), who was the daughter of the late Mdm Liew Khoon Fong (Mdm Liew) and executrix of Mdm Liew’s will. The complaint arose from two Powers of Attorney (POA) dated 20 November 2017. POA 6414 was related to the sale of 107 Namly Avenue (Namly Property), while POA 6417 was related to the purchase of a condominium unit (Condominium Unit). At the material time, Mdm Liew was 87 years old. On or around 17 November 2017, Mdm Liew’s son (Kelvin), as well as Kelvin’s wife (Jacqueline), visited the Respondent to seek his assistance to prepare two POAs for Mdm Liew who was not present at this meeting. On Kelvin’s instructions, the Respondent prepared the two POAs for Mdm Liew on or around 20 November 2017. The Respondent had prepared the draft POAs without receiving any written, or any other authority, from Mdm Liew authorising Kelvin to give him instructions on her behalf. The Respondent met and spoke to Mdm Liew for the first time on 20 November 2017 at the Namly Property. Kelvin, Jacqueline, their sons, one Goh Eng Sheng Daniel (Daniel) and one Goh Eng Chun David (David) were present. Mdm Liew signed the POAs at this meeting. POA 6414 authorised Kelvin to act on Mdm Liew’s behalf to sell the Namly Property and have the sale proceeds paid to Daniel, then 19 years old, to hold on trust for Mdm Liew for the purchase of the Condominium Unit. POA 6417 authorised Kelvin to purchase the Condominium Unit in Mdm Liew and Daniel’s names, with Kelvin having the authority to add himself as a joint owner. It also authorised Kelvin to borrow monies from banks and other financial institutions on the security of the Condominium Unit if the sale proceeds from the Namly Property sale were insufficient. Kelvin was also authorised to execute documents, such as an option to purchase and sale and purchase agreement on behalf of Mdm Liew. On 22 November 2017, Kelvin granted an Option to Purchase (OTP) to buyers for the purchase of the Namly Property. The OTP was exercised on 7 December 2017, and the Respondent was appointed by Kelvin to act as Mdm Liew’s conveyancing lawyer with respect to the sale of the Namly Property. On 1 December 2017, the OTP for the Condominium Unit was granted to Kelvin and Jacqueline with the OTP being exercised on 8 December 2017 in the names of Kelvin, Jacqueline and Mdm Liew. The Respondent also acted for Kelvin, Jacqueline and Mdm Liew in this transaction. On 13 December 2017, the Complainant discovered that a caveat had been lodged against the Namly Property. On 15 January 2018, the Complainant commenced HC/S 45/2018 (Suit 45) in her capacity as Mdm Liew’s sole donee under a Lasting Power of Attorney to stop the sale of the Namly Property. On 17 September 2020, the High Court determined that Mdm Liew had lacked the mental capacity to understand and execute the POAs on 20 November 2017 and declared the POAs void. The Respondent was not a party to Suit 45 but had given evidence at the trial. Mdm Liew passed away on 10 June 2020. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Davinder Singh SC, and Mr K Anparasan as DT member to investigate the complaint. Seven charges were preferred against the Respondent: First Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the Legal Profession Act 1966 (LPA), in that the Respondent had acted for Mdm Liew in the preparation of the two POAs dated 20 November 2017 with the client as the donor and Kelvin as attorney, without ensuring that Kelvin had the authority to give those instructions on behalf of Mdm Liew, and when the Respondent had no evidence of such authority, failed to obtain confirmation of the said instructions from Mdm Liew regarding the preparation and drafting of the said POAs, in breach of Rule 5(5)(a) and 5(5)(b) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to act with reasonable diligence and competence in the provision of services to Mdm Liew, in the preparation of the two POAs dated 20 November 2017 with the client as the donor and Kelvin as attorney, and permitted Mdm Liew to execute the said POAs without first taking sufficient steps to satisfy himself that Mdm Liew understood the nature and effect of the terms that were set out in the POAs, in breach of Rule 5(2)(c) of the PCR. Third Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to act with reasonable diligence and competence in the provision of services to Mdm Liew, by failing to take sufficient steps to safeguard Mdm Liew’s interests by ensuring that he received his instructions, and explained the nature and effect of the two POAs dated 20 November 2017, to Mdm Liew without the presence of the attorney or other family members of the attorney so as to avoid any undue influence being exerted over the client, in breach of Rule 5(2)(c) of the PCR. Fourth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had acted for Mdm Liew, Kelvin and Jacqueline in the purchase of the Condominium Unit, where there was a diversity of interests that existed between the parties, and failed to advance Mdm Liew’s interests unaffected by Kelvin’s and/or Jacqueline’s interests, by removing Mdm Liew’s name from the OTP dated 1 December 2017, in breach of Rules 20(5) and 20(6) of the PCR. Fifth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent failed to inform Mdm Liew of all information known to him that may reasonably affect her interests in respect of the purchase of the Condominium Unit, in particular the removal of her name, the non-inclusion of Daniel’s name, and the inclusion of Jacqueline’s name, in the OTP dated 1 December 2017, in breach of Rule 5(2)(b) of the PCR. Sixth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to inform Mdm Liew of all information known to him that may reasonably affect Mdm Liew’s interests in respect of the POAs, in particular the medical report prepared by Dr Ang Yong Guan and correspondence from Templars Law LLC relating to Mdm Liew’s alleged lack of mental capacity as at the time of the execution of the POAs, in breach of Rule 5(2)(b) of the PCR. Seventh Charge For misconduct unbefitting of an advocate and solicitor in the discharge of his professional duties as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(h) of the Act, in that the Respondent, who had acted for Mdm Liew in respect of the matters that were the subject-matter of Suit 45, failed to advance Mdm Liew’s interests unaffected by Kelvin’s interests, by failing to take Mdm Liew’s instructions or her donee’s instructions when he was served with a subpoena by solicitors acting in Suit 45, and instead taking Kelvin’s instructions. Findings and Determination of the DT, Council’s Sanctions The DT found that the First Charge and Second Charge were made out, while the remaining Charges were dismissed. With reference to the First Charge, the DT noted that the disparity between the Respondent’s evidence about the meeting on 20 November 2017 and what was said in the Respondent’s Attendance Note was simply too huge to be credibly accounted for. The DT further observed that it was not just the nature, terms and implications of the POAs which required careful explanation, but also the issues arising from the interaction between the two POAs. The DT stated that as Mdm Liew was 87 years old at the time and had difficulty speaking, the Respondent should not only have carefully explained the relevant matters, but should also have asked if they were in line with her wishes and instructions and how she thought they were in her interests – including asking why she felt that it was in her interest for the POAs to be irrevocable. Also, as Mdm Liew was unable to communicate her understanding verbally or in writing, the Respondent should have called for a pause and asked for her condition to be reviewed by an independent medical expert or declined to act for her. Two specific red flags were raised by the DT – (1) the fact that Mdm Liew nodded when the Respondent read the POAs to her, in light of these particular POAs that he was asked to draft by Kelvin, and the fact that one of them dealt with the disposal of her home, it should not have been accepted by the Respondent as evidence that she understood the terms, nature and consequences in the POA; (2) the fact that she did not ask any questions in light of the issues in the POAs should have raised a red flag. Crucially, the Respondent also did not take steps to meet Mdm Liew privately and without the presence of Kelvin and Daniel, who stood to benefit from the POAs, and their family members to determine whether Mdm Liew was acting under any misrepresentation, misapprehension or improper influence. The Respondent also did not ask Mdm Liew whether the POAs accorded with her wishes under any will. As for the Second Charge, the DT found that the offending conduct was the same, hence it did not add to the Respondent’s culpability. In the Third Charge, the DT found that this aspect of the Respondent’s conduct was insufficient to amount to a breach of Rule 5(2)(c), and his conduct should not be viewed in isolation, and was just one of the matters that has to be taken into account in determining whether the Respondent breached his duties. The Fourth to Seventh Charges were dismissed based on the fact that Law Society had failed to discharge its burden to show that there was in law a solicitor-client relationship between the Respondent and Mdm Liew at the material time in relation to the Condominium Unit. The Respondent was ordered to pay a financial penalty that was sufficient and appropriate to the misconduct committed, and the Law Society’s costs of $5,000. Council accepted the findings and recommendations of the DT and imposed a financial penalty of $2,000 on the Respondent. To access the full report, click here. ",https://lawsoc-mc-assets.s3.ap-southeast-1.amazonaws.com/dtr-2023-06-c.pdf,"DT/SEC/21/2021 IN THE MATTER OF TEO ENG THYE AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) Between THE LAW SOCIETY OF SINGAPORE .---Applicant And TEO ENG THYE .---Respondent Mr Davinder Singh, S.C. (President) Mr K. Anparasan (Advocate & Solicitor) Mr Vikna Rajah and Ms Antje Wong for the Law Society of Singapore Mr Peter Cuthbert Low, Ms Elaine Low and Ms Christine Low for the Respondent REPORT OF THE DISCIPLINARY TRIBUNAL A. INTRODUCTION 1. The Complainant is one Goh Yng Yng Karen. She is the daughter of the late Mdm Liew Khoon Fong (alias Liew Fong) (“Mdm Liew”) and executrix of Mdm Liew’s will. 2. Goh Yong Chiang Kelvin (“Kelvin”) is Mdm Liew’s son. His wife is Goh Sok Ngoh Jacqueline (“Jacqueline”). Goh Eng Sheng Daniel (“Daniel”) is one of their two sons, The Respondent is Mr Teo Eng Thye. He is an Advocate and Solicitor of the Supreme Court of Singapore and was admitted on 19 April 2000. He is, and was at all material times, a director of City Law LLC. The Complainant’s complaints arise from two Powers of Attorney dated 20 November 2017. Both were lodged with the Supreme Court of Singapore as HC/PA 6414/2017 (“POA 6414”) and HC/PA related to the sale of 107 Namly 6417/2017 (“POA Avenue, Singapore 6417”). POA 267676 6414 (the “Namly Property”) and POA 6417 related to the purchase of a condominium unit (the “Condominium Unit”). On 15 January 2018, the Complainant commenced HC/S 45/2018 (“Suit 45”) in her capacity as Mdm Liew’s sole donee under a Lasting Power of Attorney registered on 16 September 2014 (the “2014 LPA”), inter alia, against Kelvin in relation to the sale of Namly Property. On 17 September 2020, the High Court determined that Mdm Liew had lacked the mental capacity to understand and execute the POAs on 20 November 2017 and declared the POAs void. The Respondent was not a party to Suit 45 but gave evidence at the trial of that Suit. THE HEARING AND THE WITNESSES The Disciplinary Tribunal (the “DT”) was constituted on 8 October 2021. The hearing took place on 4 and 5 May 2022. The Applicant called the Complainant as its only witness. The Respondent gave evidence on his own behalf. He did not call any other witness. THE UNDISPUTED FACTS 10. The following matters are not in dispute’. 11. Mdm Liew passed away on 10 June 2020. The Complainant was also the executrix of Mdm 12. Liew’s will. On or around 17 November 2017, Kelvin and Jacqueline visited the Respondent to seek his assistance to prepare two POAs for Mdm Liew, who was not present at this meeting. The Respondent recorded a summary of Kelvin’s instructions in a note dated 17 November 2017. 13. On Kelvin’s instructions, the Respondent prepared the two POAs for Mdm Liew on or around 20 November 2017. The Respondent accepts that Mdm Liew was his client. 14. The Respondent prepared the draft POAs without receiving any written, or any other authority from Mdm Liew authorising Kelvin to give him instructions on her behalf. 15. At 12.28pm on 20 November 2017, the Respondent’s secretary emailed the two draft POAs to Kelvin’s email address kjgoh@hotmail.com on the Respondent’s behalf. In that email, he requested that Kelvin “go thru [sic] the drafis and let us have your comments if any.” 16. At around Spm on 20 November 2017, the Respondent visited the Namly Property. There, he met and spoke to Mdm Liew for the first time in connection with the POAs and their execution (the “Meeting”). Kelvin, Jacqueline and their sons, Daniel and Goh Eng Chun David, were present throughout. 17. Mdm Liew listened and nodded while the Respondent took her through the POAs. 1 The DT has in this section and others adopted in many places the language that the parties have used in the pleadings, affidavits of evidence and submissions 18. Very generally speaking, the first POA authorised Kelvin to act on Mdm Liew’s behalf to sell the Namly Property and have the sale proceeds paid to Daniel, then 19 years old, to hold on trust for Mdm Liew for the purchase of the Condominium Unit (the “1** POA”). 19, Broadly, the second POA authorised Kelvin to purchase the Condominium Unit in Mdm Liew and Daniel’s names, with Kelvin having the authority to add himself as a joint owner (the “2™! POA”). It also authorised Kelvin to borrow monies from banks and other financial institutions on the security of the Condominium Unit if the sale proceeds from the Namly Property sale were insufficient. Kelvin was also authorised to execute documents, such as an option to purchase and sale and purchase agreement, on behalf of Mdm Liew. 20. Mdm Liew signed the POAs at the Meeting. She was 87 years old at the time. 21, The Respondent prepared an attendance note of the Meeting (the “Attendance Note”). 22. On 22 November 2017, Kelvin granted an option to “Leow Tang Liea and/or nominees” to purchase the Namly Property (the “Namly OTP”). Leow Tang Lie was, at the material time, a director of Pinnacle Development (Greenmead) Pte Ltd (“Pinnacle”). The Namly OTP was exercised on 7 December 2017. Pursuant to the 1 POA, Kelvin appointed the Respondent as Mdm Liew’s conveyancing lawyer with respect to the sale of the Namly Property. 23, On 1 December 2017, the Option to Purchase the Condominium Unit (the “Condominium OTP”) was granted to Kelvin and Jacqueline. 24. The Condominium OTP was exercised on 8 December 2017 in the names of Kelvin, Jacqueline and Mdm Liew. On the same day, the Respondent furnished the signed acceptance copy of the Condominium OTP to the seller’s solicitors, Sterling Law Corporation (“SterlingLaw”). In that letter, the Respondent said he was acting for Kelvin, Jacqueline and Mdm Liew. Daniel was not named as a purchaser in the Condominium OTP. 25. According to the e-Notice of Transfer, the Condominium Unit was sold to Kelvin and Jacqueline on 8 December 2017. 26. On or about 13 December 2017, the Complainant discovered that a caveat had been lodged against the Namly Property in favour of Pinnacle. Following this discovery, the Complainant instructed her lawyers, Templars Law, to write to Pinnacle’s solicitors, WongPartnership, to persuade Pinnacle to defer the completion of the sale of the Namly Property. 27. On 15 December 2017, Templars Law wrote to WongPartnership to draw attention to the unusual circumstances surrounding the sale of the Namly Property and asked that Pinnacle agree to defer the completion of the sale until Mdm Liew’s mental capacity could be determined by a medical expert. That letter also added that the Complainant was the sole donee under the 2014 LPA, that the Complainant reasonably believed that Mdm Liew’s mental capacity had significantly deteriorated since September 2017, and that Kelvin had moved Mdm Liew to an unknown location’. 28. On 22 December 2017, Templars Law sent the 2014 LPA to WongPartnership*. 29. On 30 December 2017, Dr Ang Yong Guan issued a medical report in respect of Mdm Liew’s mental capacity‘. 30. On 5 January 2018, Templars Law wrote to WongPartnership and enclosed Dr Ang’s report. The report stated that the 1 POA was invalid and unenforceable, and 2 page 1044 of the Complainant's AEIC » page 1048 of the Complainant's AEIC “page 1064 of the Complainant's AEIC that Mdm Liew lacked the mental capacity to make the decision to sell the Namly Property. Templars Law asked that the sale be stopped®. By 31. an email and a letter dated 10 January 2018, Templars Law wrote to WongPartnership to ask if they had instructions to accept service of process on behalf of their client®. On 10 January 2018, WongPartnership wrote to the Respondent to ask how “[his] 32. client” intended to resolve the matter. They stated that, if the sale and purchase could not be proceeded with, that “[his] client” would compensate Pinnacle for all losses. WongPartnership enclosed Templars Law’s letters dated 15 December 2017, 22 December 2017, 5 January 2018 (with Dr Ang’s medical report attached) and 10 January 20187. 33. On 15 January 2018, the Complainant commenced Suit 45 in her capacity as Mdm Liew’s donee, pursuant to the 2014 LPA, against Pinnacle and Kelvin to stop the sale of the Namly Property. 34. Onor around 24 January 2018, the Respondent wrote to SterlingLaw. In that letter, the Respondent stated his clients’ intention to withdraw Mdm Liew’s name from the purchase of the Condominium Unit. 35. On 12 February 2018, Templars Law wrote to the Respondent to inform him that: a. the Complainant was the sole donee under the 2014 LPA; b. Dr Ang opined that Mdm Liew had been suffering from dementia since the middle of 2017 and lacked mental capacity to make financial decisions; and S page 1062 of the Complainant's AEIC * page 1072 of the Complainant's AEIC 7 page 1074 of the Complainant's AEIC c. the Complainant had commenced Suit 45 against Kelvin for the sale of the Namly Property and to request a statutory declaration setting out the full circumstances under which Mdm Liew came to sign the POAs*. 36. On27 February 2018, the Complainant’s application for an interlocutory injunction to restrain the sale of the Namly Property from being completed was refused. The sale was allowed to proceed on the basis that the sale proceeds would be paid into Court. Eventually, the sale was completed and the sale proceeds of S$5.1m were paid into Court. 37, On or around 27 February 2018, the Respondent wrote to SterlingLaw. In that letter, the Respondent referred to a fresh Option to Purchase for the Condominium Unit, to be signed by the seller pursuant to the withdrawal of Mdm Liew’s name as a joint purchaser of that unit. Kelvin and Jacqueline exercised this Option to Purchase, with the exercise date backdated to 8 December 2017 (the “Amended Condominium OTP”). 38. On 3 February 2020, Templars Law issued a subpoena in Suit 45 against the Respondent requiring him to attend the trial and to produce documents that they had asked for in their letter of 21 January 2020. It was served on the Respondent on 4 February 2020°. 39. The Respondent then consulted Drew & Napier, who were Kelvin’s solicitors, in relation to the subpoena. According to the Respondent”, he believed that he was entitled to seek instructions from Kelvin and/or his solicitors because Kelvin was a party to Suit 45. 40. The Respondent informed Templars Law over the phone that he would not be tesponding to the Complainant’s confidentiality’. ® page 1078 of the Complainant's AEIC ° page! 103 of the Complainant's AEIC %° paragraphs 70 of the Respondent's AEIC 31 paragraph 62 of the Respondent's AEIC request because of solicitor-client 41. On 12 February 2020, the Accountant-General was directed to pay out the sale proceeds of the Namly Property to Mdm Liew. 42. The Respondent filed an affidavit of evidence-in-chief and appeared as a witness in Suit 45. THE RESPONDENT’S JURISDICTIONAL OBJECTION 43. In paragraph 3 of the Respondent’s Defence (Amendment No. 1) (the “Defence”), the Respondent pleaded that, insofar and to the extent that any of the matters in the Statement of Case (Amendment No.1) (the “SOC”) and the charges in paragraph 37 of the SOC go beyond or are different from the complaint, they are not within the jurisdiction or remit of the DT. However, the Respondent does not pursue that point in his Closing Submissions. 45. Notwithstanding this, we are unable to agree with this point. As the Applicant has argued, and as made clear from the Complainant’s complaint dated 26 October 2020, the charges against the Respondent “encapsulate the gravamen of the complaint”: LSS v Yeo Khirn Hai Alvin and another matter [2020] 4 SLR 858 at [64]-[65}. THE APPLICANT’S RELIANCE ON THE JUDGMENT IN SUIT 45 AND PROOF OF MDM LIEW’S MENTAL CAPACITY 46. In the SOC, the Applicant pleaded Mdm Liew’s mental capacity (see paragraph 3(b)) and referred to one Dr Ang’s medical report dated 30 December 2017, which the Applicant said, “opined that Mdm Liew started suffering from dementia around the middle of 2017 and was progressively getting worse” (see paragraphs 26-30). The Applicant also pleaded what it said were the High Court’s findings in Suit 45, including those in relation to Mdm Liew’s mental capacity to understand and execute the POAs and the Respondent’s conduct (see paragraphs 35-36). 47. In the Defence, the Respondent denied paragraph 3 of the SOC (see paragraph 43A), disputed the findings in Dr Ang’s report of 30 December 2017 (see paragraph 67), pleaded that that report was insutticient evidence that Mdm Liew did not have mental capacity when she signed the POAs and agreed to the sale of the Namly Property (see paragraphs 68 and 69), and that it had not been enough for Dr Ang to have relied solely on the information that the Complainant had provided to conclude that Mdm Liew lacked the mental capacity to agree to the sale of the Namly Property (see paragraph 69). 48. The Respondent also pleaded that while the SOC reproduced the High Court’s findings in Suit 45 (see paragraphs 76- 88), the findings of the High Court in Suit 45 are opinion evidence (see paragraph 89). 49. The Applicant would have therefore been aware from the Defence that the Respondent had pleaded that the findings in Suit 45 relied on by the Applicant are in the nature of opinion. The Applicant would also have been aware of the Defence’s assertion that there was insufficient evidence that Mdm Liew lacked mental capacity when she signed the POAs and agreed to the sale of the Namly Property. 50. As mentioned above, the Applicant only called the Complainant as a witness. It did not call Dr Ang or any expert on the issue of Mdm Liew’s mental capacity. 51. In her Affidavit of Evidence in Chief (“AEIC”), the Complainant referred to and telied on parts of the Judgment in Suit 45 (see e.g., paragraphs 16, 17, 38, 46, 53, 62, 63, 65, 71, 73, 86, 89, 90, 91, 93, 94). She also referred to and relied on Dr Ang’s reports (see e.g., paragraphs 122-124) and on Dr Ang’s opinion that “Mdm Liew was suffering from dementia which started around the middle of 2017 and was progressively getting worse”. 52. However, while the Complainant is a medical doctor, she was called as a witness of fact and not as an expert witness on Mdm Liew’s mental capacity. As she testified, she was not qualified to comment on Mdm Liew’s mental capacity (TS, 4 May 2022, page 25 lines 3-7). 53. In his closing submissions, the Respondent contended that in view of section 45 of the Evidence Act, Arul Chandran v Chew Chin Aik Victor JP [2000] SGHC 111 at [141], Zrans-World (Aluminium) Ltd v Cornelder China (Singapore) [2003] 2 SLR(R) 501 at [19], the findings of fact in Suit 45 (that were referred to and relied on by the Complainant in her AEIC and at the hearing) are not evidence and not admissible for their truth. 34, The Respondent also submitted that the hearing before the DT was a de novo hearing. The Applicant did not respond to this point. 55. At the end of the hearing, the DT gave the parties liberty to ask for leave to submit reply submissions to the other side’s closing submissions. The Applicant did not ask for leave to respond to these submissions. 56. As per Rule 23 of the Legal Profession (Disciplinary Tribunal) Rules, the Evidence Act applies to proceedings before the DT in the same manner as it applies to civil and criminal proceedings. 57. The position under section 45 of the Evidence Act as set out in Arul Chandran and Trans-World was later reaffirmed by the Court of Appeal in Zainal bin Kuning v Chan Sin Mian Michael [1996] 2 SLR (R) 858 at [69], where it held that a “judgment determining a fact in one trial cannot be used or relied upon in another trial”. 58. This was also addressed by the Singapore Intemational Court (“SICC”) in Beyonics Asia Pacific and others v Goh Chan Peng and another [2020] 4 SLR 215 which, applying Arul Chandran, held at [33] that “evidence of statements made in an earlier case may be adduced in order to seek to discredit evidence given by a witness in a later case, but there is an important distinction between reliance upon statements made in a previous action and conclusions reached by the court in that previous action on the basis of those statements”. 59. The SICC also applied Zainal bin Kuning and held at [35] that “a finding of fact in a previous judgment cannot be relied upon to prove primary facts which have to be proved in a subsequent action, 60. Here, although the Respondent was a witness, he was not a party to Suit 45. Neither was the Applicant. The Applicant has not submitted that any exception to section 45 of the Evidence Act applies. 61. While there had been an agreement in relation to the documents in the bundles of documents, it was qualified. On the first day of the hearing, Mr Peter Low for the Respondent informed the DT that the Respondent agreed to the documents in the bundles of documents, “subject to cross-examination”. In cross-examination, Mr Low challenged the assertion that Mdm Liew lacked mental capacity at the material time and took issue with Dr Ang’s reports and views. 62. On the question of whether the hearing before the DT was a de novo hearing, although the Respondent did not cite any authority, his submission is supported by Re Parti Liyani [2020] SGHC 227 at [48] where the Honourable Chief Justice held that “the Disciplinary Tribunal is obliged to hear the matter de novo”. The Disciplinary Tribunal in that case accordingly treated the hearing before it as a de novo hearing: see The Law Society of Singapore v Tan Yanying and another [2022] SGDT 6 at [20]. 63. In the circumstances, we agree with the Respondent that the Applicant cannot rely on the findings in the Judgment in Suit 45 to prove the existence or truth of matters that the Respondent has not admitted or agreed to in this case. We also find that there was no evidence before us of Mdm Liew’s mental capacity. THE STANDARD OF PROOF 64. It is trite that the charges have to be proved beyond a reasonable doubt: Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR 308 at [6]. G. THE CHARGES THE FIRST CHARGE 65. The First Charge is as follows: That you, Teo Eng as an advocate in section whilst you Thye, are charged 83(2)(b)(i) acted of with Supreme Kelvin with Court the as the attomey, Profession the for Madam of the 2 Powers respectively improper and solicitor of the Supreme preparation the with Legal Liew of Attommey as client 1966 that, Fong) in the dated 20 November 2017 lodged and HC/PA as donor one Goh Conduct) in (alias Liew 6414/2017 in breach of Rule (Professional Fong Act HC/PA the or practice Court of Singapore as set out Profession Khoon conduct and 5(5)(a) Rules 2015 6417/2017 Yong Chiang and 5(5)(b) of the Legal you took instructions from Goh Yong Chiang Kelvin without ensuring that he had the authority to give those evidence instructions of such instructions from on behalf of your authority, your you client client and failed to obtain regarding the when confirmation preparation and you had no of the said drafting of the said Powers of Attorney. THE PARTIES’ CONTENTIONS 66. The Applicant recounts the following: First, the Respondent met Mdm Liew for the first time only at the Meeting. Second, the Meeting was his first and only contact with her. Third, he did not, at the 17 November 2017 meeting with Kelvin, obtain confirmation of Kelvin’s authorisation to act for Mdm Liew in relation to the POAs. 67. It is argued that although it became plain to the Respondent during the Meeting that Mdm Liew was not able to communicate verbally, the Respondent should not have been satisfied with Mdm Liew’s nods and smile as he went through the POAs with her, not least because the Respondent accepted that there was a greater need for him to confirm Kelvin’s instructions with Mdm Liew because Kelvin stood to benefit from the POAs. 68. The Applicant contended the following: First, Mdm Liew’s responses were insufficient to confirm her instructions. Second, the Respondent did not speak to her alone to confirm if Kelvin’s instructions were indeed hers. Third, the Respondent did not ask her to repeat the instructions that she had allegedly given to Kelvin. It argued that the Respondent could have asked Mdm Liew to confirm her instructions by writing them down. 69. The Respondent relied on the dicta in Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 (“K Jayakumar Naidu”) to contend that solicitors should not be held to the same “strict protocols appropriate in a business setting” and that “by and large, family members do not take advantage of each other”. 70. He also argued that there was nothing remarkable or suspicious about the circumstances of this case. Tl. The Respondent contended that since Kelvin was Mdm Liew’s son, the Respondent was entitled to assume that Kelvin had the authority to give him instructions on her behalf. He contended that at the 17 November 2017 meeting he informed Kelvin that he needed to personally take Mdm Liew’s instructions and to witness her execution of the POAs. 72. The Respondent said that at the Meeting, he took instructions from Mdm Liew personally, verified Kelvin’s instructions, and also confirmed Mdm Liew’s own instructions. According to him, after explaining the terms of the POAs, he not only asked Mdm Liew if she understood what he had said but also asked her why she wanted to move out and if she wanted to buy a single-storey condominium unit to live in. He contended that he was satisfied that she possessed mental capacity at the time. 73. The Respondent further argued that he witnessed her execution of the POAs, adding that he even observed her taking off her glasses and reading them before signing. 74. The Respondent also argued that he was entitled to rely on Mdm Liew’s nodding as confirmation of her instructions, and for that purpose relied on section 5(1)(d) of the Mental Capacity Act (“MCA”). He said that he had used simple language when explaining the terms of the POAs, that Mdm Liew was able despite her physical limitations to sit upright on her own, and that she even took off her glasses to read the POAs before signing them. He added that if he had stated anything incorrect, Mdm Liew would have corrected him, just as she was able to correctly identify the members of her family and even referred to Kelvin by his nickname. 75. Insofar as section 5(1)(d) of the MCA is concemed, the Applicant’s position was that nodding is insufficient where, as here, Mdm Liew did not ask any questions or make any amendments to the POAs. 76. Both parties relied on a number of authorities, which we have considered. Some of them were cited for more than one of the charges. Il. 77. OUR FINDINGS Section 83(2)(b)(i) of the Legal Profession Act 1966 (the “Act”) concerns, inter alia, a breach of any rule of conduct made by the Professional Conduct Council. 78. Rule 5(5) is the subject of the First Charge. That Rule provides that where a legal practitioner is given instructions purportedly on behalf of his or her client, the legal practitioner must, under Rule 5(5)(a), ensure that the person giving those instructions has the authority to give those instructions on behalf of the client or, under Rule 5(5)(b), if there is no evidence of such authority, obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions. 79. It is alleged that the Respondent breached both Rule 5(5)(a) and Rule 5(5)(b). 80. Insofar as Rule 5(5)(a) is concerned, it is not in dispute that the Respondent met Mdm Liew for the first (and only) time on 20 November 2017. That means that the Respondent was unable to ensure at that meeting that Kelvin had Mdm Liew’s authority to give instructions to him in relation to the POAs when he met Kelvin and Jacqueline on 17 November 2017 and when his assistant secretary emailed, on his behalf, the drafis of the POAs to Kelvin at Kelvin’s email address at around 12.28pm on 20 November 2017 requesting that Kelvin “go thru the drafts and let us have your comments if any”. 81. However, that does not mean that Rule 5(5)(a) was breached. Rule 5(5)(b) shows that in cases where it is not possible to obtain evidence of such authority, the solicitor must obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions. 82. In this case, the Respondent acted reasonably and in compliance with Rule 5(5)(a). It was the Respondent’s uncontested evidence that at the 17 November 2017 meeting, he told Kelvin to bring Mdm Liew to his office to enable him to take her instructions and witness her execution of the POAs, and that when Kelvin asked if there was another way for the Respondent to do that since Mdm Liew was unable to walk and had trouble speaking, he informed Kelvin that he could visit Mdm Liew at the Namly Property. 83. The Meeting was arranged for Monday 20 November 2017, the first working day after 17 November 2017, which was a Friday. In his contemporaneous note of the 17 November 2017 meeting’, the Respondent recorded “To visit client 20/11/17 evening 5-6pm to the house”. 84. According to the Respondent, the Meeting was arranged for him to meet Mdm Liew for the Respondent to take her instructions and witness her execution of the POAS, 85. In the circumstances, we do not agree that there was a breach of Rule 5(5)(a). 2see paragraph 10 of the Respondent's AEIC and TAB-I of TET-I » see paragraphs 10 and 11 of the Respondent's AEIC 86. The next question we will address is whether at the Meeting, the Respondent had obtained Mdm Liew’s confirmation of Kelvin’s instructions. 87. The Court of Appeal’s observations in Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 at [60] on the duty of solicitors who undertake the task of preparing and/or witnessing the execution of wills are instructive: “In our view, this case demonstrates that solicitors who undertake the task of preparing wills and/or witnessing the execution of wills must take the necessary precautions or steps in order to fulfil their duties to their clients. The precautions are not complicated nor are they time consuming. In any case, as solicitors, they must do what is required, however complicated or difficult the task may be. The central task is to ensure that the terms of the will reflect the wishes of the testator. How this is done depends on the circumstances of each case. In every case, the solicitor should be cautious about taking instructions from any person who is to be named as a beneficiary in the will.” 88. At [61], the Court of Appeal in the same case reiterated the following points that were made in Low Ah Cheow v Ng Hock Guan [2009] 3 SLR (R) 1079: “73. The preparation of a will involves serious professional responsibilities, which solicitors must uncompromisingly observe and discharge. Regrettably, it seems to us that, all too often nowadays, solicitors appear to consider the preparation of a will to be no more than a routine exercise in form filling. This is wrong. Before preparing a will, the solicitor concerned ought to have a thorough discussion with potential complications the testator on all the possible legal issues that might arise in the implementation and of the terms of the will. The solicitor ought to painstakingly and accurately document his discussions with and his instructions from the testator. He should also confirm with the testator, prior to the execution of the will, that the contents of the will as drafted accurately express the latter’s intention.” 89. In Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 at [95], the Court of Three Judges held, in relation to a solicitor’s duty when asked to prepare a Power of Attorney to be executed by the client, that: “The respondent was obliged to take reasonable care to advise and ensure that the complainants understood the implications of executing a power of attorney in the prevailing circumstances”. 90. In Zan Phuay Khiang at [97], the Court also observed that where “there was a real possibility that the execution of a power of attorney had not been initiated by the [clients] themselves, but at a third party's behest instead....it was imperative for the [solicitor] to have privately met with the [clients] and ensured that the [clients] were not acting under any misrepresentation or improper influence and could communicate with him freely”. 91. In K Jayakumar Naidu, the Law Society decided not to pursue the charge relating to the respondent’s failure to advise his client on the nature, purport and consequence of the Power of Attorney. In that context, the Court of Three Judges said at [44] and [45]: “44, The gravamen of the first charge relates to the respondent's alleged failure to advise HCS on the nature, purport and consequence of the power of attorney. 45, As the Law Society eventually did not pursue this charge we need not dwell on this save to make the following observation. To require solicitors to hold their clients’ family members to the same strict protocols appropriate in a business setting would place them in an untenable attitude of opposition with their clients’ families and would not be in the interest of the client. Nor would it accord with the common experience that, by and large, family members do not take advantage of each other. The Law Society was therefore correct in eventually submitting that there was nothing remarkable or suspicious about the circumstances in which HBS approached the respondent to prepare the power of attorney. At that stage, he need not have done anything more than confirm that HCS wanted to sell the flat and that he wanted HBS to act on his behalf.” 92. However, the Court also said this at [1]: “A solicitor should also ensure that the client understands sufficiently any risks that may arise. This duty is elevated when a solicitor has reason to suspect that there are special risks or unusual pitfalls involved in the subject transaction. Naturally, the extent of this duty depends on the precise identity, sophistication and circumstances of the client: a vulnerable client, such as one who is mentally and/or physically disadvantaged, uneducated or impecunious, may require comprehensive and comprehensible advice for even the simplest of matters; in contrast, a client who is a seasoned businessman management team may or a corporate entity with an in-house risk be reasonably presumed to have greater situational awareness. In a similar vein, the extent of the duty will also vary with the client’s apparent familiarity owe clients their advance with a proposed a fundamental their client’s interests duty and transaction. All of undivided loyalty not place themselves solicitors to also ethically in a position of conflict.” Goh Yng Yng Karen v Goh Yong Chiang Kelvin [2021] 3 SLR 896"" held at [119] that: “It is well established that what amounts to a transaction that calls for an explanation is a “fact-sensitive inquiry” where “much would depend on the strength of inferences to be drawn from the circumstances”: Moh Tai Siang v Moh Tai Tong and another /20/8] SGHC 280 at [80]. I note also the observation in Royal Bank of Scotland ple v Etridge (No 2) [2002] 2 AC 773 at [22] citing with approval the view of Lindley LJ in Allcard v Skinner (1887) 36 Ch D 145 at 185 that a transaction calls for an explanation where accounted Sor on the ground it cannot “be reasonably of Sriendship, relationship, charity or other ordinary motives on which ordinary men act.” % which is being relied on for the law as set out by the Court 93. After considering Muriel Chee and Low Ah Cheow, the High Court opined that in cases involving a solicitor’s duty in connection with a client’s disposal of property to his or her successors, there is no material distinction between a situation involving wills and one which involved the making of an inter vivos gift. 94, In view of these authorities, the question whether there was a breach of Rule 5(5)(b) is a “fact-sensitive inquiry” where “much would depend on the strength of inferences to be drawn from the circumstances”. It is important therefore to consider all the circumstances. In doing that, it must be borne in mind that this case involved family members (see Jayakumar Naidu). This requires a consideration of the circumstances leading to and what happened at the Meeting. 95. The starting point is what the Respondent said happened. 96. According to the Respondent"", during the meeting on 17 November 2017, Kelvin informed him that Jacqueline and their family were residing with his mother, Mdm Liew, at the Namly Property. Furthermore, Mdm Liew had instructed him that she wanted to move out of the Namly Property as soon as possible for two principal reasons: First, that as she was wheelchair-bound, it was inconvenient for her to move up and down the stairs in the Namly Property, as well as to and from her bedroom to the toilet. Second, that as she spent most of her time at the Namly Property, Mdm Liew was affected by ongoing construction work in the neighbouring properties which generated noise, dust, and pollution, causing her discomfort and affected her sleep during the day. As such, she suggested that she, Kelvin, and his family move to a single-storey condominium unit where she would be able to move freely and more independently in her wheelchair. Further, Kelvin, his family, and their domestic helper would be on the same floor and thus be able to respond to her needs more easily. 97. According to the Respondent, at the 17 November 2017 meeting, Kelvin had told him that Mdm Liew had instructed him to engage a lawyer to prepare two Powers of Attomey for Kelvin to act on her behalf in the sale of the Namly Property and 8 paragraph 9 of the Respondent's AEIC the purchase of a single-storey condominium unit. She had also instructed that the Powers of Attorney should allow for the following: a. Kelvin to sell and absolutely dispose of the Namly Property; b. Kevin to request for all sale proceeds to be issued to Daniel to be held on trust for Mdm Liew for the purchase of the single-storey condominium unit. (Mdm Liew wanted to give the Namly Property to Daniel, her favourite grandson), and; c. Kevin to purchase the single-storey condominium unit in her and Daniel’s names with the option to include Kelvin as a joint owner. 98. The Respondent also said that at the 17 November 2017 meeting, Kelvin requested that he prepare the Powers of Attorney for the sale of the Namly Property and for the purchase of a single-storey condominium unit. 99. The Respondent said’ that he also asked Kelvin whether Mdm Liew had a history of mental illness or had ever been admitted to the Institute of Mental Health (“IMB”) or any other mental health facilities and Kelvin informed him that Mdm Liew was in perfect mental health and that he could verify the same after meeting her. The Respondent also said that he did not sense anything was amiss, given that he had adult children approaching him on their parents’ behalf before and that Kelvin had identified himself to the Respondent as a medical doctor. He said he had trusted Kelvin when he said that Mdm Liew was in perfect mental health and had never been admitted to IMH or any other mental health facilities. He added that he was satisfied that he would be able to verify Mdm Liew’s mental capacity himself and to take her instructions when he met her on 20 November 2017. 100. According to the Respondent, at the Meeting, the Respondent met Mdm Kelvin, Jacqueline and their two sons were present throughout. 16 paragraphs 13 and 14 of the Respondent's AEIC Liew. 101. The Respondent said""? that Kelvin had begun the Meeting by introducing him to Mdm Liew as the lawyer who he had approached to act for her. The Respondent explained tv Mdin Liew that he was there because Kelvin had told him that Mdm Liew had asked Kelvin to engage a lawyer to prepare legal documents to give Kelvin the power to sell the Namly Property and purchase a single-storey condominium unit, and for the lawyer to act in the sale of the Namly Property and the purchase of the single-storey condominium unit. Mdm Liew nodded her head in affirmation of the Respondent’s explanation. 102. The Respondent also said that upon meeting Mdm Liew, he had introduced himself and asked for her name. As Mdm Liew had difficulty speaking audibly, the Respondent was unable to decipher her response. He then read out Mdm Liew’s name from her NRIC card, which Daniel handed him. Mdm Liew confirmed her identity by nodding and smiling. 103. The Respondent then asked Mdm Liew if she recognised the people around her. She said yes, and introduced him, one by one, to her family members who were present, in the following order: Kelvin, Jacqueline, Daniel and David, and lastly her domestic helper. She was able to softly refer to Kelvin as “Vin”, which the Respondent understood was her affectionate nickname for him. She also correctly identified each individual present in the room. 104. Following the confirmation of Mdm Liew’s identity, he then asked Mdm Liew three times if she was comfortable having the Meeting in the presence of Kelvin, his family members, and the domestic helper. Mdm Liew nodded her head in response each time she was asked, indicating that she was comfortable. 105. The Respondent then proceeded to ascertain if Mdm Liew possessed mental capacity by first asking her if she had a history of mental illness or if she had ever been admitted to IMH or any other mental treatment facilities. In response, Mdm Liew shook her head, indicating that she did not have a history of mental illness » paragraphs 21-37 of the Respondent's AEIC and that she had not ever been admitted to IMH or any other mental treatment facilities. 106. The Respondent tumed to Kelvin and asked the same questions in Mdm Liew’s presence. Kelvin confirmed that Mdm Liew had no history of mental illness, nor had she ever been admitted to IMH or any other mental treatment facilities. The Respondent proceeded to ask Mdm Liew if she understood the purpose of the Meeting. Mdm Liew nodded her head, indicating that she understood the purpose of the Meeting. 107. Throughout their interaction, the Respondent observed that Mdm Liew was fully alert, and was able to understand and respond to his questions although she was unable to walk and had difficulty speaking audibly. As such, the Respondent was satisfied that Mdm Liew possessed mental capacity. 108. The Respondent asked her if the Namly Property was suitable for her to continue residing in. In response, Mdm Liew shook her head, indicating that the Namly Property was not suitable for her to continue residing in. He also asked if the noise from the construction from the neighbouring properties was one of the reasons why the Namly Property was no longer suitable for her to live in. Again, Mdm Liew nodded her head. 109. The Respondent asked if Mdm Liew had difficulty manoeuvring up and down the stairs in the Namly Property, and in response, she nodded her head. 110. He asked Mdm Liew if she wished to move to a single-storey condominium unit to avoid having to manoeuvre up and down stairs and to avoid the noise from the neighbouring properties, and Mdm Liew nodded her head again. 111. The Respondent asked Mdm Liew to confirm that she wished to appoint Kelvin as her attomey to sell the Namly Property and to purchase a single-storey condominium unit. She nodded. He then proceeded to explain the following, inter alia, in respect of the POAs to Mdm Liew: a He explained to Mdm Liew that the sale proceeds of the Namly Property were to be used to purchase a single-storey condominium unit in the joint names of herself and Daniel. He also explained the meaning and consequences of Daniel holding the sale proceeds on trust for Mdm Liew. He further explained that as Daniel was not 21 years of age, his share in the property would be held on trust by Kelvin and that usually for trust matters, a separate trust deed would be drafted. However, as at the time of the execution of the two POAs, the address of the single-storey condominium unit was not yet known, the trust deed could not yet be drafted; Q) The Respondent explained the meaning of joint tenants and tenants-incommon and the implications. To explain the concept of a joint tenancy and the right of survivorship to Mdm Liew, he employed a hypothetical situation in which persons A, B and C were joint tenants of a property. He explained that if A passed away, B and C would be the owners of the entire property. Likewise, if B passed away, A and C would be owners of the entire property, and if C passed away, A and B would be owners of the entire property. He then explained that in a tenancy-in common, each tenant possesses their own share which can be distributed according to their will or by intestacy; G3) He explained that if the sale proceeds of the Namly Property were insufficient to purchase the single-story condominium unit, Kevin’s name would be included as a joint tenant for the purposes of obtaining a bank loan to finance the remaining balance of the purchase price. He then asked Mdm Liew if she wanted Kelvin’s name to be included as a joint tenant in the event a bank loan is required to finance the balance purchase price. Mdm Liew nodded, indicating her assent and that she understood the above. The Respondent then explained to Mdm Liew that the two POAs had the effect of giving the Namly Property to Daniel, and asked Mdm Liew if she intended to give the Namly Property to Daniel. Mdm Liew nodded. He asked Mdm Liew if she intended to give the Namly Property to David. Mdm Liew shook her head, indicating that she did not wish to give the Namly Property to David; and (4) He said that Kelvin’s consent would be required to revoke the two POAs. He informed Mdm Liew that the two POAs were irrevocable without written approval from Kelvin or the Family Justice Courts. He explained that this meant that Mdm Liew could not withdraw, cancel, or amend the two POAs after their execution, and asked if she understood. Mdm Liew nodded, indicating that she understood. 112. The Respondent said he repeated these explanations twice. Mdm Liew nodded her head in response to each explanation, indicating that she understood the terms and the consequences of the two POAs. When the Respondent finished his explanation, he asked Mdm Liew if she understood what he had said. She nodded her head. 113. He asked Mdm Liew once more if she wanted to move out of the Namly Property because it had become inconvenient for her to stay there, and that she wanted to buy a single storey condominium unit to live in instead. Mdm Liew nodded her head again. 114. The Respondent was satisfied that she had mental capacity to sign the two POAs. He then placed the two POAs in front of Mdm Liew, who removed her glasses and took some time to read them before signing them in his presence. The Respondent then affixed his stamp to the two POAs and countersigned against them. 115. He observed that during the Meeting, Mdm Liew appeared relaxed, alert and showed no signs of discomfort or that she was not acting on her own. 116. We are unable to accept the Respondent’s evidence of what happened during the Meeting for the following reasons:117. First, this evidence does not accord with the Respondent’s Attendance Note of the Meeting which he prepared at around 6.15pm when he retumed to his office after the Meeting'®. According to the attendance note: +8 see paragraph 39 of the Respondent's AEIC and TAB 5 of TET-1 a. Mdm b. The Meeting took place between Spm to 5.45pm; c. The Meeting concemed “2x Powers of Attorney at 107 NamlyAve”; d. The Respondent “saw Mdm Liew around Spm and read the POA to her”; e. Liew is recorded as the client; | “She was aware that her son had told me to come and she had given instruction to her son”. Her response, if any, was not recorded; f. The Respondent “ask{ed] her whether she understand what I was saying and whether she recognise the people around her”. Mdm Liew’s response, if any, was not recorded; g. | The Respondent “askfed] her whether she was admitted to woodbridge or mental clinic before, she said No”; 118. h. “She said that staying here is inconvenient and want to move out”; i. “She was relaxed ... and no sign of oppression or discomfort”; and j. “end 5.45pm”. The Respondent sought to explain the difference between his evidence and the Attendance Note by saying that the latter did not fully reflect his communications with Mdm Liew. 119. While we accept the Attendance Note was not, and could not have been, meant to be a verbatim note of what was said at the Meeting, the fact is that the Respondent ‘was conscious of the need to have a contemporaneous record of what he considered to be the main and important aspects of the Meeting. Further, the fact that he prepared it immediately after the Meeting meant that his memory of the Meeting was fresh at that time. 120. The disparity between his evidence about the Meeting and what is said in the Attendance Note is simply too huge to be credibly accounted for. 121, According to the Attendance Note, the Respondent “read the POA to her”. There is nothing about him explaining the POAs (let alone more than once) in the manner that he claimed in his evidence. There is also nothing in the Attendance Note about him explaining the nature and effect of the POAs to Mdm Liew. The Applicant submitted that the Respondent accepted that he did not say any of this in his affidavit of evidence-in-chief in Suit 45 (his “45 AEIC”). 122. In his Defence, the Respondent also claimed that he explained the nature and consequences of joint ownership of the Condominium Unit by Mdm Liew, Kelvin and Daniel. This was not in the Attendance Note. The Applicant submitted that the Respondent did not say this in his 45 AEIC. 123. The Respondent also took the position that he explained the meaning and consequences of Daniel holding the sale proceeds of the Namly Property on trust for Mdm Liew and that as Daniel was below 21 years of age, his share in the property would be held on trust by Kelvin. This was not in the Attendance Note. The Applicant submitted that this was different from what the Respondent said in his 45 AEIC where the Respondent said that he explained that the sale proceeds would be held by Daniel on trust for her to purchase the Condominium Unit. 124, As the Applicant pointed out, the Respondent’s own understanding of the legal effect of the 2 POA was inaccurate and that Kelvin could, at his own discretion, add himself as a joint tenant to the purchase of the Condominium Unit. It was also not correct that Kelvin would be added as a joint tenant to the purchase of the Condominium Unit only if there were insufficient funds to finance the purchase the Condominium Unit from the sale proceeds of the Namly Property. 125. According to the Attendance Note, Mdm Liew “was aware that her son had told me to come and she had given instruction to her son”. However, her response, if there was any, was not recorded. This also begged the question whether she understood what the Respondent was talking about when he said that “she had given instructions to her son”. 126, The Attendance Note also said that the Respondent “ask/ed/ her whether she understand what I was saying and whether she recognise the people around her”. This presents a particular difficulty because the POAs had unusual clauses and features that gave rise to various issues that needed very careful explanation, particularly to an 87 year old lay person who could not readily interact because of her speaking difficulties. 127. In fact, it was not just the nature, terms, and implications of the two POAs which required careful explanation but also the issues arising from the interaction between the two POAs. They raised, inter alia, the following issues or concerns: a. The concept of joint tenancy; b. That Mdm Liew would be making an inter-vivos gift to Daniel to the exclusion of others; c. How that intention could still be fulfilled if Kelvin included his name in the purchase of the Condominium Unit; d. The fact that she could not on her own change her mind; e. That Daniel was a minor (the Respondent knew that Daniel was about 19 years old at the time!® and cannot be a trustee); £. What the terms of the trust would be and how would they affect Mdm Liew and her rights; 39 NE dated 25 February 2020, page 79, line 16, Tab 19 of Exhibit KG-I at page 720 g. | What would happen if after the Namly Property was sold, complications arose in relation to the purchase of the Condominium Unit e.g., because Daniel refused to allow the sale proceeds to be used, and; h. The fact that Kelvin could choose to be one of the purchasers of the Condominium Unit at a consideration of his own choosing, which might create a conflict of interest. 128. Mdm Liew was 87 years old at the time. She had difficulty speaking. The Respondent should not only have carefully explained these matters but should also have asked if they were in line with her wishes and instructions and how she thought they were in her interests, including asking why she felt that it was in her interest for the POAs to be irrevocable by her. In this connection, the Applicant pointed out that it was the Respondent’s evidence in his 45 AEIC that Mdm Liew did not provide reasons for the POAs to be irrevocable and he did not see any necessity to ask her about that. 129, If Mdm Liew was unable to communicate her understanding verbally or in writing, then the Respondent should have called for a pause and asked for her condition to be reviewed by an independent medical expert or declined to act:- a. The fact that Mdm Liew nodded when the Respondent read the POAs to her, in light of these particular POAs that he was asked to draft by Kelvin and the fact that one of them dealt with the disposal of her home, should not have been accepted by the Respondent as evidence that she understood their terms, nature and consequences; and b. The fact that she did not ask any questions in light of the issues and concerns referred to above should have raised a red flag. 130. The Respondent said that because his 45 AEIC was drafted for a different purpose from present proceedings, it did not contain as many details as his AEIC in these proceedings. We are unable to accept that. Although he was not a party to Suit 45, the question whether the Respondent properly explained the POAs to Mdm Liew at the Meeting and whether she executed the two POAs with a full understanding of their terms and effect was an important issue of fact in that case. Therefore, it would have been important for the Respondent to be as comprehensive as possible in his evidence at the High Court Trial about what happened at the Meeting. 131. The Respondent also did not take steps to meet Mdm Liew privately and without the presence of Kelvin and Daniel, who stood to benefit from the POAs, and their family members to determine whether Mdm Liew was not acting under any misrepresentation, misapprehension, or improper influence. The Respondent also did not ask Mdm Liew whether the POAs accorded with her wishes under any will. In this connection, we were shown photos of the Meeting that were taken by Jacqueline which showed that Kelvin stood or sat in front of Mdm Liew, to her right, and that David and Daniel stood directly in front of Mdm Liew”, The proximity was vexing and should have alerted the Respondent to insist on a private meeting with Mdm Liew. 132. If the Respondent’s account of what he did at the Meeting is correct, then the Meeting could not have taken around 45 minutes (around Spm to 5.45pm). 133. We note that the Respondent’s evidence in these proceedings about what he claimed to have explained to Mdm Liew was given after he would have read the High Court’s decision in Goh Yng Yng Karen, where he gave evidence and findings were made about him and his conduct, and which highlighted what he omitted to do at the Meeting. 134. In coming to these findings, we were conscious of the obiter dicta in K Jayakumar Naidu which has been referred to above about family settings. However, even there, the Court recognised that there may be remarkable or suspicious circumstances or situations where family members may seek to take advantage of each other. We are satisfied that for the reasons set out above, including the unusual clauses and features of the POAs, Kelvin and Daniel’s benefits as well as the fact % photos at Tab 21 KG-I at pages 804-806 of the Complainant's AEIC that Mdm Liew could not by herself revoke the POAs, this situation called for special vigilance and care. 135. We are unable to agree with the Respondent’s position on the MCA”!, 136. Section 4 of the MCA states that a person lacks capacity in relation to a matter if at the material time the person is unable to make a decision for himself or herself because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 5(1)(d) of the MCA provides that for the purposes of section 4, a person is unable to make a decision for himself or herself if the person is unable to communicate his or her decision (whether by talking, using sign language or any other means). 137. All that section 5(1)(d) does is to list visual illustrations of when it can be said that a person is unable to make a decision for herself. It does not say, and does not amount to legislative endorsement, that if a person can communicate by sign language or other means, she is able to make a decision for herself. The latter does not flow from the former. 138. We are also unable to accept the Respondent’s reliance on evidence of other events involving Mdm Liew which, according to him, show that Mdm Liew had mental capacity. As he accepted”, he did not know about these other events at the Meeting. 139, In coming to our decision, we have not had any regard to the question of whether Mdm Liew had mental capacity at the material time. Unlike Suit 45, where expert evidence was led, there was no expert evidence on that issue before us. 140. In the circumstances, we find that the Respondent breached Rule 5(5)(b) as alleged in the First Charge. 2 paragraph 121 of the Respondent's Closing Submissions 2 paragraph 107 of the Respondent's Closing Submissions THE SECOND CHARGE 141, The Second Charge is as follows: That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme in section 83(2)(b)(i) of the whilst you acted for Madam Legal Court of Singapore Profession Liew Khoon Act as set out 1966 in that, Fong (alias Liew Fong) in the preparation of the 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme respectively Kelvin with Court the HC/PA 6414/2017 and HC/PA as donor and one Goh in breach of Rule 5(2)(c) of the Legal Profession Rules failed to with reasonable to your client, client as the attorney, (Professional Conduct) diligence competence and that you permitted as your the 2015 in the you provision client to execute act of services the said 6417/2017 Yong Powers Chiang in of Attorney without first taking sufficient steps to satisfy yourself that your client understood the nature and effect of the terms that were set out in the said Powers of Attorney. 142. Under Rule 5(2)(c), a legal practitioner must act with reasonable diligence and competence in the provision of services to the client. THE PARTIES’ POSITIONS 143. According to the Applicant, solicitors breach their duty to advance their clients’ interests with diligence and competence if they fail to advise on the issues peculiar to the matter at hand and to ensure that the client understands any risks that may arise: K Jayakumar Naidu at [1]. 144, The Applicant argued that there was a breach of Rule 5(2)(c) on two grounds: first, that the Respondent failed to ascertain that Mdm Liew had sufficient mental capacity to make a decision with respect to the POAs; and second, that the Respondent failed to render proper advice for Mdm Liew to understand her position and the risks with respect to the nature and effect of the POAs. 145. The Respondent’s position on the first ground was that there was no evidence of mental incapacity and that in any event he relied both on his own independent and in-person assessment that Mdm Liew was mentally competent as well as Kelvin’s confirmation that Mdm Liew was mentally competent. The Respondent’s own assessment of Mdm Liew’s mental capacity was based on the fact that Mdm Liew was able to communicate by nodding her head. 146. With regard to his position on the second ground, the Respondent maintained that he acted consistently with his duties. Il. OUR FINDINGS 147. For the reasons set out under our discussion in relation to the First Charge, we find that the Respondent breached Rule 5(2)(c) as alleged in the Second Charge. 148. However, we should add that because the offending conduct in First Charge and the Second Charge is the same, our finding under the Second Charge does not, in our view, add anything to the Respondent's culpability. THIRD CHARGE 149. That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act (Cap. in breach Rules of Rule 2015, you 5(2)(c) of the Legal failed act with to Profession reasonable 161) 1966 in that, (Professional diligence and Conduct) competence in the provision of services to your client Madam Liew Khoon Fong (alias Liew Fong) by failing to take sufficient steps to safeguard the interests of your client by ensuring that you received your instructions and explained the nature and effect of the 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme Court as HC/PA 6414/2017 and HC/PA 6417/2017 respectively with the client as the donor and one Goh Yong Chiang Kelvin as the attorney, to the client without the presence of the attomey or other family members of the attorney so as to avoid any undue influence being exerted over the client. THE PARTIES’ POSITIONS 150. The Applicant contended that the Respondent should have met Mdm explained the POAs, Liew, and taken her instructions in Kelvin’s and his family’s absence. Kelvin and Daniel were beneficiaries and the Respondent should have been concerned that Mdm Liew could not have been able to communicate her wishes in front of them. It relied on Jayakumar [68] and Tan Puay Khiang [97]. 151. The Respondent argued that he had asked Mdm Liew thrice if the Meeting could proceed in the presence of Kelvin and his family. He said that Kelvin was, after all, Mdm Liew’s son and his family were her family members. He contended that he observed that Mdm Liew appeared relaxed, alert and showed no signs that she was not acting on her own free will. IL OUR FINDINGS 152. Rule 5(2)(c) has been set out above. 153. In our discussion above under the First Charge, we said that all the circumstances had to be considered. The allegation that the Respondent should have received his instructions and explained the POAs without the presence of the attorney or other family members of the attorney cannot be viewed in isolation and was just one of the matters that has to be taken into account in determining whether the Respondent breached his duties. We are not satisfied that a charge based only on this one aspect of his conduct is sufficient to amount to a breach of Rule 5(2)(c). 154, In the circumstances, we dismiss this charge. TH C) GI 155. That you, Teo Eng Thye, are charged with as an advocate and solicitor of the Supreme improper you acted Yong Chiang Kelvin Ardmore Park for Madam and Goh #36-02, Liew Sok Singapore Khoon Ngoh 1966 (Cap. Fong Jacqueline 259962, or practice Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act whilst conduct where (alias 161) in that, Liew Fong), in the purchase there was of 1 a diversity of interests that existed between the parties, you failed to advance Mdm Liew Khoon Fong’s (alias Liew Fong) interests unaffected by the interest of Goh Yong Chiang Kelvin and/or Goh Sok Ngoh Jacqueline, by removing Mdm Liew’s name from the Option property, to which Purchase dated is a breach 1 December of Rule 20(5) 2017 and in respect Rule 20(6) of the said of the Legal Profession (Professional Conduct) Rules 2015. THE PARTIES’ POSTIONS 156. The Applicant argued that the Respondent’s position that he was acting only for Kelvin in the purchase of the Condominium Unit is mistaken because he admitted that he was acting for Kelvin, Jacqueline and Mdm Liew when the Condominium OTP was exercised. This was also seen in his letter of 8 December 2017 to SterlingLaw when the Condominium OTP was exercised”. He therefore was under an obligation to inform Mdm Liew, his client, when her name was removed as a purchaser of the Condominium Unit. 157. It contended that a diversity of interests arose when Kelvin instructed the Respondent to remove Mdm Liew’s name as a purchaser and that that removal was to Mdm Liew’s disadvantage and conversely to the advantage of Kelvin and Jacqueline. Further, as the Respondent would have been aware that Kelvin’s instructions conflicted with the 2™ POA, he should have directly informed Mdm Liew of Kelvin’s instructions, which would result in Mdm Liew losing her most significant asset, the Namly Property”*. ® paragraphs 76, 77 and 78 of the Applicant's Closing Submissions » paragraphs 81 and 82 of the Applicant's Closing Submissions 158. The Complainant testified that the Respondent should have informed Mdm Liew, his client, that her name was to be removed under the Amended Condominium Ol? and that as a result, she would no longer own a property under her name. The Respondent should also have ceased to act in the conveyancing transaction or ceased to act for Mdm Liew and obtain her informed consent, in writing, for him to continue to act in the conveyancing transaction». 159, Instead, the Respondent sent the 24 January 2018 letter to seek the vendor’s consent for Mdm Liew’s name to be removed although he was aware that Mdm Liew might be prejudiced”®. 160. The Respondent made the same arguments for the Fourth Charge and the Fifth Charge. 161. He denied there was a conflict of interests in representing Mdm Liew, Kelvin and Jacqueline because Mdm Liew received fair consideration for the sale of the Namly Property. Thus, there was common interest among the three to purchase the Condominium Unit for the family’s residential purposes and Kelvin and Jacqueline became the Respondent's clients as purchasers of the Condominium Unit only after the original plan to purchase that unit under the terms of the 2"" POA, read with the 1° POA, was aborted”’, 162. He argued that the Option to Purchase that was exercised on 8 December 2017 was not exercised pursuant to the 2"" POA. By that time, he had been told that the “money most likely will not come in”, In any event, the 2"" POA was contingent on the sale proceeds of the sale of the Namly Property being used to purchase the Condominium Unit’. He was also of the view that, as Mdm Liew would no longer be a party to the purchase of the Condominium Unit, there would be no prejudice %5 paragraph 109 of the Complainant's AEIC 28 paragraph 89 of the Applicant's Closing Submissions » paragraphs 146 and 154 of the Respondent's Closing Submissions % paragraph 156 of the Respondent's Closing Submissions to her and as such there was no need for him to cease acting for Mdm Liew or the others as there was no conflict of interests”. 163. The Respondent also contended that, since he believed that the POAs were valid and enforceable, he was entitled to take instructions from Kelvin as Mdm Liew’s attomney in the purchase of the Condominium Unit.>° He also pointed out that the proceeds of sale were to be used for the purchase of a single-storey condominium unit and the 2™ POA did not specify any particular address of that unit."" 164. The Respondent said that when he wrote the letter dated 24 January 2018 to SterlingLaw, he acted in his capacity as Kelvin’s solicitor in the purchase of the Condominium Unit. This, according to him, was because the Complainant had commenced Suit 45 against Kelvin who had informed him that Mdm Liew would no longer be a party to the purchase of the Condominium Unit which would be purchased in the names of Kelvin and Jacqueline, that that purchase would be financed by his and Jacqueline’s own savings and that he wanted the Respondent to act for Kelvin and Jacqueline in the purchase of the Condominium Unit®?. 165. The Respondent also said that as the 2014 LPA had not been activated at the time, there was no need to inform Mdm Liew of the removal of her name, the non- inclusion of Daniel’s name, and the inclusion of Jacqueline’s name*>. Il. OURFINDINGS 166. Rules 20(5) and 20(6) provide that where a legal practitioner acts for 2 or more different parties in a matter or transaction, and a diversity of interests arises between those parties during the course of the retainer for the matter or transaction, he or she must throughout the remainder of the course of the retainer for the matter or transaction continue to be vigilant of any conflict or potential conflict between the ?° paragraph 146 of the Respondent's Closing Submissions ® paragraph 140 of the Respondent's Closing Submissions 3 paragraphs 140 and 142 of the Respondent’s Closing Submissions ® paragraphs 58 and 59 of the Respondent's AEIC ® paragraphs 141 and 142 of the Respondent's Closing Submissions interests of any of the relevant parties and inform each relevant party in the matter or transaction if, in the course of the retainer, the legal practitioner has difficulty in advising on and dealing with the relevant parties’ divergent interests competently, evenly and consistently. 167. The following discussion is on the assumption that there was in law a solicitor-client relationship between the Respondent and Mdm Liew. We will come back to that below. 168. Before 24 January 2018, when the Respondent wrote to SterlingLaw to say that his clients intended to withdraw Mdm Liew’s name from the purchase of the Condominium Unit, he had been aware of the letters from Templars Law to WongPartnership dated 15 December 2017, 22 December 2017, 5 January 2018 and 10 January 2018. 169. The Respondent was also aware of the following: First, the Complainant claimed to be the sole donee under the 2014 LPA, and that she claimed that Kelvin had moved Mdm Liew to an unknown location. Second, Dr Ang had issued a medical report which said that Mdm Liew was suffering from dementia which started around the middle of 2017**. Third, the Complainant’s position was that the 1‘ POA was invalid and unenforceable, that Mdm Liew lacked the mental capacity to decide to sell the Namly Property, and that her lawyers had asked that the sale be stopped and had asked WongPartnership if they had instructions to accept service of process on behalf of their client. 170. He therefore found himself in a position where, in acting for Mdm Liew, Kelvin and Jacqueline, he had secured for her an interest in the Condominium Unit and Kelvin was now asking him to divest one of his clients of her interest. Those instructions could not have been given under the POAs meant to facilitate the sale of the Namly Property and the purchase, with Mdm Liew being one of the buyers, of a single-storey condominium unit. The Respondent would also have known that * page 1070 of the Complainant's AEIC the fact that Daniel’s name was not added to the Condominium OTP was not consistent with Mdm Liew’s alleged intention to make a gift to him. 171. Further, he had been put on notice of the matters in Templars Law’s letters. He would have known that, should the 1 POA be said to be invalid because of Mdm Liew’s alleged mental condition, that would also call into question the validity of the 2"" POA which was signed at the same time. 172. He therefore found himself in a position where if the POAs were valid, and he withdrew Mdm Liew’s name, he would affect her interests. If the POAs were not valid, he could not act on Kelvin’s instructions, which were purportedly given under the POAs, to remove her name. 173. In these circumstances, he was under a duty to check the position with Mdm Liew to ensure that there was no divergence of interests between her on the one hand and Kelvin and his family, on the other. He was under a duty to satisfy himself that she continued, after the POAs, to have the mental capacity to instruct him in the sale of the Namly Property and the purchase of the Condominium Unit, as well as ask Mdm Liew if the purchase in Kelvin, Jacqueline and her names was consistent with her intention to make a gift to Daniel, and whether she agreed with giving up her interest in the Condominium Unit. If the Respondent had not been given access to her or was unable to properly obtain instructions, he should have ceased acting for all his clients. 174, However, this does not mean that the Fourth Charge has been made out. 175. These Rules, and the Fourth Charge, are premised on there being a retainer and a solicitor-client relationship between the Respondent and Mdm Liew at the material time. In fact, the Applicant’s Closing Submissions emphasise the Respondent’s duty to his “client”. % see eg paragraph 88 176. It is not the Applicant’s case that the Rules apply even where there is no retainer but that a solicitor believed that there was one. 177. If, as is the Complainant’s case, the POAs were null and void, and the High Court in Suit 45 has found them to be null and void, then the question which arises is whether there was in law a solicitor-client relationship between the Respondent and Mdm Liew after she signed the POAs which have been found by the High Court to be null and void. 178. The fact that he informed SterlingLaw that he acted for Mdm Liew and that he purported to act for Mdm Liew when the Condominium OTP was accepted and thereafter does not mean that there was that relationship in law or that in law, he had been retained by her. 179. As this issue was not addressed by either the Applicant or the Respondent, at a posthearing conference on 19 July 2022, we raised this for the parties to consider their positions on it since it affected the 4"" to 7"" Charges. We asked the Applicant’s counsel whether it wished to proceed with these charges. The Applicant’s counsel said that he will consider the matter and take instructions and get back to us. The Respondent’s counsel said that he did not address this point because of an oversight. 180. By a letter dated 26 July 2022, the Applicant’s counsel said that the Applicant would like to proceed on these charges. In that letter, the Applicant’s counsel referred to Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2015] 5 SLR 62 and the disciplinary proceedings which followed from that decision, reported as The Law Society of Singapore v Harjeet Singh [2016] SGDT 9. He argued that in light of these cases, the Applicant was of the view that there “could still be a breach” of the relevant Rules referred to in these charges. 181. With respect, we are unable to see how either case is of assistance. In Mahidon, there was a solicitor-client relationship between the appellants and the solicitor before the deed in issue, i.e., the RBI Deed, came to be executed: see [17]. It was in that context that the Court of Appeal considered the scope of the solicitor’s duties and whether he had breached them. Those findings had no impact on the solicitor- client relationship. Unlike the present case, it was not a situation where the solicitor’s authority was based on the very document which the solicitor was found not to have properly advised. 182. As we set out above, the standard of proof is beyond a reasonable doubt. We are not satisfied that the Applicant has discharged that burden to show that even though the POAs have been found to be null and void, there continued thereafter to be a solicitor-client relationship in law between the Respondent and Mdm Liew. 183. For these reasons, we dismiss the Fourth Charge. EIFTH CHARGE 184. That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act 1966 in that, whilst you acted for Madam Liew Khoon Fong (alias Liew Fong) in the purchase of 1 Ardmore Park #36-02, Singapore 259962, you failed to inform the client of all information known to you that may reasonably affect the interests of the client in respect of the purchase of 1 Ardmore Park #36-02, Singapore 259962 in particular of the removal of her name, the non-inclusion of the name of Daniel Goh Eng Sheng and the inclusion of the name of Goh Sok Ngoh Jacqueline from the Option to Purchase dated 1 December 2017 in respect of the said property, which is a breach of Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015. I. THE PARTIES’ POSITIONS 185. The Applicant argued that the Respondent had failed to inform Mdm Liew that her instructions under the 2 POA were not being followed by Kelvin, the attorney, because the Condominium Unit was purchased with Jacqueline and not Daniel. It also argued that the Respondent had assumed a responsibility to Mdm purchase the Condominium Unit, % paragraphs 89 and 94 of the Applicant's Closing Submissions Liew to 186. The Respondent made the same arguments as he did in relation to the Fourth Charge. I. QUR FINDINGS 187. Rule 5(2)(b) has been set out above. 188. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 189. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. SIXTH CHARGE 190, That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act 1966 in that, whilst you acted for Madam Liew Khoon Fong (alias Liew Fong) in the preparation, execution and registration of 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme Court as HC/PA 6414/2017 and HC/PA 6417/2017 respectively with the client as the donor and one Goh Yong Chiang Kelvin as the attorney, you failed to inform the client of all information known to you that may reasonably affect the interests of the client in respect of the said Powers of Attorney in particular of the medical report prepared by Dr Ang Yong Guan dated 30 December 2017 and correspondence from Templars Law LLC dated 12 February 2018 relating to the alleged lack of mental capacity of the client as at the time of execution of the said Powers of Attorney, which is a breach of Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015. THE PARTIES’ POSITIONS 191. The Applicant contended that the Respondent knew from correspondence which was forwarded to him that the Complainant had challenged Mdm Liew’s mental capacity*’, It argued that the Respondent was privy to the Dr Ang’s medical report dated 30 December 2017 which said that Mdm significantly deteriorated since the middle of 2017 Liew’s mental capacity had and of the Complainant’s complaint that Kelvin had concealed Mdm Liew from her’®. 192. The Applicant contends that, in spite of the above, the Respondent failed to inform Mdm Liew of this challenge and instead informed Kelvin*®. 193. The Applicant further said that the Respondent should have been put on notice of the possibility that Mdm Liew was suffering from dementia which started around the middle of 2017 and did not inform her of that to obtain her instructions. It was wrong for the Respondent to assume that the Complainant’s concerns were entirely without substance and did not even consider that there was a risk that Mdm Liew had not authorised Kelvin to find a lawyer to prepare the POAs and yet proceeded to forward the correspondence to Kelvin®, 194, The Respondent argued that when he received the letter dated 10 January 2018 from WongPartnership, he forwarded it to Kelvin, who was Mdm Liew’s attorney, to ask if there had been a change in Mdm Liew’s mental capacity since the Meeting. Kelvin denied that there was any change*"". 195. Insofar as Templars Law’s letter dated 12 February 2018 was concemed, the Respondent maintained that as the information sought was protected by solicitor- client privilege and as the Respondent was of the opinion that the 2014 LPA had » paragraph 100 of the Applicant's Closing Submissions %* paragraphs 98 and 104 of the Applicant's Closing Submissions %° paragraph 100 of the Applicant's Closing Submissions “ paragraph 108 of the Applicant's Closing Submissions * paragraph 158 of the Respondent’s Closing Submissions not been properly activated, there was no need for him to respond and therefore no need for him to take Mdm Liew’s instructions on that letter. i. OUR FINDINGS 196. Rule 5(2)(b) has been set out above. 197. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 198. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. SEVENTH CHARGE 199. That you, Teo Eng Thye, are charged with in the discharge of your advocate and solicitor advocate and solicitor of the Supreme section 83(2)(h) whilst you had of acted the Legal for Madam misconduct unbefitting professional of an duties as an Court of Singapore as set out in Profession Liew Khoon Act Fong 1966 in (alias Liew that, Fong) in respect of the matters that were the subject-matter of Suit No 45 of 2018, where in Chiang the said Kelvin Suit was a your client was defendant, the you plaintiff and failed to advance one Goh her Yong interests unaffected by the interests of Goh Yong Chiang Kelvin, by failing to take the instructions subpoena by of your client or her donee the acting solicitors for when your you client in instead taking the instructions of Goh Yong Chiang Kelvin. L THE PARTIES’ POSITIONS were served the said with Suit a and 200. The Applicant argued that whether the Respondent complied with the subpoena is irrelevant to this charge“. It said that the Respondent should not have sought instructions in relation to the subpoena from Kelvin because he had no authority to make decisions and act for Mdm Liew with respect to the subpoena. Further, since Kelvin was a defendant in Suit 45, it was improper for the Respondent to take advice from Kelvin’s solicitors*. 201. The Complainant said“ that the Respondent had conceded during the hearing before the Inquiry Committee (Transcript dated 25 March 20121 page 56) that he should have taken instructions from Mdm Liew and not from Kelvin, who was represented by Drew & Napier. She also said that the Respondent did not advance Mdm Liew’s interests as he disclosed the subpoena to Kelvin and obtained advice from Kelvin’s lawyers as to the manner in which he should comply with the subpoena, even though Kelvin was a defendant in Suit 45. She said that since the Respondent had received the 2014 LPA by then, he should have known that Kelvin had no authority to make decisions and act for Mdm Liew with respect to the subpoena. 202. The Respondent argued that he believed that he was entitled to take instructions from Kelvin and/or his solicitors because Kelvin was a party to Suit 45, the documents that were requested were protected by solicitor-client privilege and that the POAs were valid and enforceable. Further, because Suit 45 was to determine whether Mdm Liew had mental capacity, he continued to take instructions from Kelvin**. IL. OUR FINDINGS 203. Section 83 (2)(h) of the Legal Profession Act 1966 states that due cause may be shown by proof that an advocate and solicitor has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 2 paragraph 113 of the Applicant's Closing Submissions * paragraph 115 of the Applicant’s Closing Submissions “ paragraphs 145 and 146 of the Complainant's AEIC *5 paragraphs 167 and 170 of the Respondent’s Closing Submissions 204. We do not agree that this Charge has been made out. 205. When the Respondent was served with a subpoena, his interests were potentially divergent from those of the Complainant, who was representing Mdm Liew. Suit 45 was an action to nullify the POAs. The Respondent’s conduct was going to be squarely in issue, and he would likely be criticised. In our view, he was fully entitled to speak to whoever he wished, including Kelvin and any law firm which felt able to advise him on his own position and exposure. 206. We disagree with the assertion that the Respondent should have taken instructions from Mdm Liew, who was effectively the plaintiff in Suit 45, through the Complainant who initially acted pursuant to the 2014 LPA and later as executrix of Mdm Liew’s estate, and therefore on the other side of the Suit. 207. There is another reason we do not agree that this charge has been made out. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 208. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. CONCLUSION 209. In conclusion, we find that the First and Second Charges have been made out. We dismiss the remaining Charges. 210. In considering whether cause of sufficient gravity for disciplinary action exists, we have had regard to the fact that it was not the Applicant’s case and was not put to the Respondent that he acted with any deliberation, dishonesty, or for improper motives. It appears from the Respondent’s evidence that he appears to have been influenced about the scope of his obligations by the small fee that he would eam from preparing and attending to the execution of the POAs. That was an unfortunate 24th ",2023-06-10T04:00:28+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jun-2023/,"In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jun-2023/",c4b7ea526f68d6038a494759578484edc7f944c1,"[""title"",""pdf-link"",""pdf-content"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,2,2,1,1049,"In the Matter of Carolyn Tan Beng Hui (Respondent), Advocate & Solicitor","In the Matter of Carolyn Tan Beng Hui (Respondent), Advocate & Solicitor On or about 2 May 2017, sale proceeds from the sale of a residential property were deposited with the Respondent’s law firm, Tan & Au LLP (TALLP). The property was registered to Seo Puay Guan (SPG), who was one of seven siblings. The other siblings had alleged that SPG held the property on trust for their late mother, and each claimed an interest in the balance sale proceeds. TALLP filed interpleader proceedings in Originating Summons No. 1100 of 2017 (OS 1100) with the seven siblings as respondents. OS 1100 was fixed for hearing for three days from 12-14 September 2018 before Dedar Singh Gill JC (as he then was) (the JC) where SPG was cross-examined on 12 September 2018 and 13 September 2018. The learned JC asked the counsels to attend in his physical chambers to deal with house-keeping matters. The attendance in chambers concluded shortly after noon on 13 September 2018, and at 1.22pm, TALLP filed SUM 4260 of 2018 in OS 1100 (the Recusal Application) for the learned JC to recuse himself from further hearing the proceedings. The Respondent filed an affidavit in support the next day (the Recusal Affidavit) which contained allegations against other legal practitioners without letting them have the opportunity to respond to the said allegations. The Respondent had also made further statements against the learned JC in the Recusal Affidavit which was disrespectful to the Court. The recusal application was heard on 25 September 2018 before the learned JC and was dismissed. An affidavit opposing the application was filed by the late David Kong who was the solicitor for three of the siblings. The Respondent took umbrage at statements made in David Kong’s affidavit and filed a police report accusing him of perjury. The solicitors for the siblings of SPG jointly made a complaint to the Law Society. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Tan Chuan Thye SC and Mr Chong Yee Leong as DT member to investigate the complaint. The following charges were preferred against the Respondent: Under DT 6 of 2019 First Charge For breaching Rule 29 of the Legal Profession (Professional Conduct) Rules 2015 (PCR) in permitting an affidavit to be filed on behalf of TALLP in HC/OS 1100/2017 which contained allegations against other legal practitioners without allowing them an opportunity to respond to the said allegations. Second Charge (Alternative Second Charge under Section 83(2)(h) of the LPA) For breaching Rule 13(2) of the PCR in being disrespectful of the Court in the making of certain statements in respect of the learned JC in an affidavit filed in HC/OS 1100/2017. Under DT 6A of 2019 First Charge (Alternative First Charge under Section 83(2)(h) of the LPA) For breaching Rule 13(2) of the PCR in filing or causing to be filed documents against the Court’s directions and orders, which are discourteous of a Court. Second Charge (Alternative Second Charge under Section 83(2)(h) of the LPA) For breaching Rule 29 of the PCR in having permitted documents to be filed on behalf of TALLP in HC/OS 1100/2017 containing allegations against other legal practitioners without allowing them an opportunity to respond to the said allegations. Findings and Determination of the DT, Council’s Sanctions The DT’s findings are summarised below: The DT cited dicta by Andrew Phang JA in China Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd [2005] 2 SLR(R) 509 and Law Society of Singapore v Tan Buck Chye Dave [2007] 1 SLR(R) 581 to remind counsels that “… one can disagree and yet not be disagreeable…” and that there should be “… more civility within the legal profession itself …” and “… more camaraderie within the profession …”. Council accepted the findings and recommendations of the DT, and imposed a financial penalty of S$10,000 on the Respondent. Dissatisfied, the Respondent sought to review and set aside the decision of the Council to impose a financial penalty of S$10,000 in HC/OS 432/2021 (OS 432). The Judge in OS 432 found that the penalty imposed was appropriate and justifiable. The Respondent appealed against the decision of the Judge in OS 432 (the Appeal). The Appeal was dismissed on 12 September 2022 with costs of $30,000 (all-in) payable to the Law Society.* To access the full report, click here. *The decision of the Court of Appeal can be found in Tan Beng Hui Carolyn v Law Society of Singapore [2023] SGCA 7. ",https://lawsoc-mc-assets.s3.ap-southeast-1.amazonaws.com/dtr-2023-05.pdf," 12th November Annex 1 38 39 40 Annex 2 29 30 31 Annex 3 52 53 54 55 56 58 ",2023-05-01T04:00:01+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-may-2023/,"In the Matter of Carolyn Tan Beng Hui (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-may-2023/",f3de6da006bda9991973e3b102717606008ec92e,"[""title"",""pdf-link"",""pdf-content"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,3,3,1,1049,"In the Matter of Ong Lian-Yi Gregory (Respondent), Advocate & Solicitor","In the Matter of Ong Lian-Yi Gregory (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Scarlett Merida Xi Wei Yuan (the Complainant). On or around 27 October 2015, the Complainant was served with a statutory demand for a sum of S$970,547.26 (Statutory Demand) allegedly due to one Ang Boon Kim t/a ABK Leasing (ABKL) under a loan agreement. The Complainant wished to dispute the alleged debt, and met the Respondent on 28 October 2015 and 29 October 2015 respectively to hand him relevant documents and pay a deposit of S$7,000.00 with instructions to file an application to set aside the Statutory Demand (Setting Aside Application). From 1 November 2015 to 4 December 2015, the Complainant and the Respondent exchanged various e-mails and WhatsApp messages wherein the Respondent had provided assurances to the Complainant that there should be no issues with her Setting Aside Application. The Complainant was made a bankrupt on 24 December 2015 and the Complainant terminated the Respondent’s engagement on 18 January 2016. The Respondent returned the deposit of $7,000.00 to the Complainant on 19 January 2016. The bankruptcy order annulled on 27 August 2018 after an application by the Complainant’s new lawyers. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Giam Chin Toon SC and Mr Teo Weng Kie as DT member to investigate the complaint. Three charges (and its alternatives) were preferred against the Respondent: First Charge For grossly improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act (Chapter 161) (LPA) in that the Respondent had failed to act promptly and diligently on the instructions of the client to set aside the Statutory Demand and/or to apply for an extension of time of the said deadline, in breach of Rule 5(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 (Rules). Second Charge For grossly improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the LPA in that the Respondent failed to keep his client reasonably informed of the progress of the application to set aside the Statutory Demand and/or the application to extend the time to set aside the Statutory Demand, in breach of Rule 5(2)(c) of the Rules. Third Charge For grossly improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the LPA in that the Respondent failed to use all legal means to advance the client’s interests to the extent that he may reasonably be expected to do so, and failed to take the necessary steps to apply to set aside the Statutory Demand and/or to apply for an extension of time of the said deadline, in breach of Rule 5(2)(c) read with Rule 5(2)(j) of the Rules. An alternative charge premised on section 83(2)(h) was preferred for each principal charge. At the hearing, only the Alternative First Charge and Alternative Second Charge were proceeded with (Proceeded Charges), and the remaining charges withdrawn. Findings and Determination of the DT, Council’s Sanctions The DT found that the Proceeded Charges were made out. The DT found that the Respondent was at all times fully aware of the deadline for the Setting Aside Application, but on the evidence, he had not shown any sign of concern or urgency even though time was fast running out. The Respondent’s conduct throughout the engagement was lackadaisical. The DT was satisfied that the Respondent’s conduct was grave enough to amount to misconduct unbefitting of an advocate and solicitor. In arriving at the recommended sanction, the DT considered some mitigating factors such as the Respondent not having gained financially from the matter, no prior antecedents, and there was no form of dishonesty and/or untruthfulness in the matter. In balancing this, the DT was also cognisant that the Respondent’s actions had caused suffering and inconvenience to the Complainant as she was adjudged a bankrupt. The DT found that no cause of sufficient gravity for disciplinary action existed under section 83 of the LPA, but the Respondent should be ordered to pay a financial penalty of $5,000.00 with costs of $2,500.00 to be paid to the Law Society. Council adopted the findings and recommendations of the DT, including but not limited to the finding that the Respondent’s actions had caused suffering and inconvenience to the Complainant as she was adjudged a bankrupt, and the Respondent was ordered to pay a financial penalty of $5,000.00. The Respondent was to pay the Law Society’s costs of $2,500.00 also. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2023/04/dtr-2023-04-c.pdf,"IN THE MATTER OF ONG LIAN-YI GREGORY (AN ADVOCATE AND SOLICITOR) AND IN THE MATTER OF THE LEGAL PROFESSIONAL ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal Mr Giam Chin Toon, SC President Mr Teo Weng Kie Member Counsel for the Law Society Allen & Gledhill LLP Ms Fay Fong 1 Marina Boulevard, #28-00 Singapore 018989 Ref No.: FFONG/dc/1021006176 Counsel for the Respondent K&L Gates Straits Law LLC Mr N. Sreenivasan, SC / Ms Ranita Yogeeswaran 9 Raffles Place #32-00, Republic Plaza Singapore 048619 Ref No.: SN/RY/tm/4901608.00001 Dated this 27th day of June 2022 1 INTRODUCTION THE CHARGES 1. Complainant referred a complaint against Mr Ong Lian- Respondent Law Society October 2020. 2. The Respondent was admitted to the roll of advocates and solicitors of the Supreme Court of Singapore on 10 June 1992. At all material times, the Respondent practised with the firm of David Ong & Co. 3. Pursuant to the complaint, the Law Society referred the matter to the Inquiry IC investigated by a Disciplinary Tribunal (the Tribunal 4. The Law Society had preferred 3 charges each with an alternative charge against the Respondent when the Tribunal was constituted. These charges are as follows: 1ST CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 (Cap. 161, No. S 706), to wit, by failing to act with reasonable diligence and competence in the provision of services to a client in that despite accepting instructions on or about 28 October 2015, 2 you failed in the period of 28 October 2015 to 18 January 2016 to act promptly and diligently on the instructions of the client to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby breached a rule of conduct under the provisions of the Legal Profession Act (Cap. 161) which amounts to grossly improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap. 161). ALTERNATIVE 1ST CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did fail to act with reasonable diligence and competence in the provision of services to a client in that despite accepting instructions on or about 28 October 2015, you failed in the period of 28 October 2015 to 18 January 2016 to act promptly and diligently on the instructions of the client to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap. 161). 3 2nd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) read with Rule 5(2)(e) of the Legal Profession (Professional Conduct) Rules 2015 (Cap. 161, No. S 706), to wit, by failing to act with reasonable diligence and competence in the provision of services to a client, by failing to keep the client reasonably informed of failing to keep the client reasonably informed of the progress of the application to set aside the Statutory Demand which had been served on the client on 27 October 2015 and/or the application to extend the time to set aside the Statutory Demand, and you have thereby breached a rule of conduct under the provisions of the Legal Profession Act (Cap. 161) which amounts to grossly improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap. 161). ALTERNATIVE 2nd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did fail to act with reasonable diligence and competence in the provision of services to a client, did fail to keep the client reasonably informed of th 2015 to 18 January 2016, failing to keep the client reasonably informed of the progress of the application to set aside the Statutory Demand which had been served on the client on 27 October 2015 (the and/or the application to extend the time to set aside the Statutory Demand and you have thereby committed an act 4 amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2 )( h) of the Legal Profession Act (Cap. 161). 3rd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) read with Rule 5(2)(j) of the Legal Profession (Professional Conduct) Rules 2015 (Cap. 161, No. S 706), to wit, by failing to act with reasonable diligence and competence in the provision of services to a client, by failing to use all legal means to advance the interests, to the extent that a legal practitioner may reasonably be expected to do so, by, between 28 October 2015 to 18 January 2016, failing to take the necessary steps to apply to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby breached a rule of conduct under the provisions of the Legal Profession Act (Cap. 161) which amounts to grossly improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap. 161). ALTERNATIVE 3rd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did fail to act with reasonable diligence and 5 competence in the provision of services to a client, did fail to use all legal means to advance the interests, to the extent that a legal practitioner may reasonably be expected to do so, by, between 28 October 2015 to 18 January 2016, failing to take the necessary steps to apply to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 5. Submissions, had raised certain defects in respect of the charges. He submitted that the First Charge and the Third Charge (and their corresponding alternative charges) form what is essentially a single offence and/or are sufficiently close as to constitute a unitary offence for the purpose of sentencing. 1 He raised the issue again at the Hearing the Tribunal asked Counsel for the Law Society, Ms Fong, whether she had received instructions on the points raised and her reply was that she had not as the objections were raised about only a week before the Hearing. The Tribunal therefore granted her time to obtain instructions from the Law Society on the objections. 1 6 6. When the Hearing resumed, Ms Fong informed the Tribunal that the Law Society had considered the matter and her instructions are to withdraw the first, second, third and Alternative 1st Alternative 2nd Charge Charge pro Proceeded Charges 7. The Respondent thereupon claimed trial on the Proceeded Charges. 8. The Respondent also confirmed that he admits to the facts as stated in the Agreed ASOF though he had claimed trial on the Proceeded Charges. As both parties had requested for the Hearing to proceed on a documents-only basis, there was no examination and cross examination of witnesses. AGREED FACTS 9. On or around 27 October 2015, the Complainant was served with a statutory demand Statutory Demand ABKL 10. agreement. The Complainant wished to dispute the alleged debt. She met the Respondent on 28 October 2015 and 29 October 2015 respectively to hand relevant documents and pay a deposit of S$7,000.00 to him with instructions to file an application to set aside the Statu Setting Aside Application 7 11. Thereafter, correspondences between the Respondent and the Complainant took place and these can be summarised as follows: (i) The Complainant wrote to the Respondent on 1 November 2015 to provide a chronology, pursuant to his request to provide him with background facts and a legal research and then draft (ii) setting out his comments and questions to the chronology, as he was of the view that the chronology had In the same email, he set out his opinion on the defence including the timeframe within which the Statutory Demand had to be set aside. He said that according to her, the Statutory Demand had been served on 27 October 2015 and as such, she had 14 days to set it aside. He advised that the due date was therefore 10 November 2015. (iii) On 4 November 2015, the Respondent followed up by email time-stamped 1.44pm, which reminded the Complainant to reply to his queries as the timelines were continuing to run. He also emphasised that he needed these answers in order to prepare the originating summons and supporting affidavit to set aside the Statutory Demand. On the same day, at 1.51pm, the Complainant provided further answers to the Responden she would provide the rest of the answers in later emails. questions and said 8 (iv) By email on 4 November 2015 at 11.22pm, the Complainant sought to provide Whatsapp messages. On 9 November 2015, the Complainant asked for an update and the Respondent said that he was studying her case. (v) On 10 November 2015, which was the deadline the for setting aside, the Complainant sent a Whatsapp message to enquire as to the status of the filing. She noted that the deadline had arrived, to which the Respondent said that her understanding was correct. He then said for extension of time so long as filed within a reasonable period. BTW today is a public holiday. Happy (vi) As there was no further word from the Respondent, the Complainant followed up by Whatsapp on 1 December 2015, asking about her and expressing a hope to have updates soon. The Respondent replied, saying that he was in court. He also said She responded, asking if there was a deadline. There was no reply from the Respondent. (vii) The Complainant then sent an email on 2 December 2015, time-stamped 5.12pm, again inquiring about the deadline for submission of the setting aside application. 9 (viii) That same day, the Respondent replied via email with time-stamp 5.51pm, assuring the Complainant that he was applying for extension of time to file the setting aside application and that (ix) However, as at the time of the deadline to set aside the Statutory Demand (i.e. 10 November 2015), the Respondent had not in fact prepared the application. He had also not filed any ap EOT Application (x) Accordingly, as the Statutory Demand had remained unsatisfied and/or unchallenged, the Complainant was presumed to be unable to pay her debts. A bankruptcy application was filed against the Complainant on 25 November 2015. (xi) On 4 December 2015, the Respondent sent a Whatsapp message to the Complainant stating very busy with court hearings this week. I will complete drafting all court papers and call you when I am (xii) On 24 December 2015, a bankruptcy order was made against the Complainant. (xiii) engagement. 10 (xiv) On 19 January 2016, the Respondent returned the deposit of $7,000.00 to the Complainant. (xv) the bankruptcy order issued against the Complainant was annulled and the Statutory Demand was set aside. A. DOCUMENTS TENDERRED AT THE HEARING 12. The following Affidavits of Evidence in Chief were filed and referred to at the Hearing: (i) 2022; and (ii) 2022. 13. Both Affidavits of Evidence in Chief AEICs were brief. The merely referred to the ASOF as being true and accurate. The AEIC AEIC also merely confirmed the contents of the ASOF. He had added that he verily believed that his conduct that is the subject matter of these proceedings does not amount to misconduct that warrants sanction pursuant to the Act, and on this basis, he respectfully requested that this Tribunal acquit him of the charges made against him. 11 14. The following bundles were tendered at the Hearing: (i) Agreed Bundle of Documents dated 7 March 2022, which included the ASOF at pages 407-412 (the ABOD (ii) (iii) 2022; (iv) and (v) 2022. B. 15. 2022; SUBMISSIONS At the Hearing, Counsel for the Law Society, Ms Fong, had summarised the salient background facts with some details which were not found in the ASOF. However, mind. Mr Sreenivasan S.C. for the Respondent confirmed that he does not dispute these facts even though they were not in the ASOF.2 In any case, the facts were documented in the ABOD. 16. Law Society of Singapore v Chiong Chin May Selena [2013] SGHC 5 ( Selena Chiong ) wa be sufficiently grave and could be considered to be a breach of an essential duty of an advocate and solicitor such that it is inexcusable and would constitute professional misconduct.3 Ms Fong also cited a textbook authority authored by Jeffrey Pinsler SC.4 2 Transcript for the Hearing, page 32 at line 17 and page 33 at line 2, where Counsel for the Respondent was dealing with the limited issue of the emails of 4 November 2015. 3 [14]. 4 [17]. 12 17. The decision of Zhou Tong v Public Prosecutor Zhou Tong was next referred to. Members of the profession have to be competent and diligent in advising their clients when representing their interests. This fundamental professional responsibility requires every solicitor to thoroughly familiarise himself with the facts , analyse the issues carefully, research the applicable law and then . Professional incompetence and consider how best to indolence are no less a cause for concern as compared with cases of dishonesty. 18. It was submitted that the Commentary on the Legal Profession (Professional Conduct) Rules 2015 at [05.047] summarised what professionalism encompasses in the context of competence and diligence pursuant to rule 5 of the Legal Profession (Professional LPPCR 5 Ms Fong noted that in the same commentary at [05.041], it was said that the duty of reasonable diligence also involved completing work for the client as soon as reasonably possible. It was said that this is also prescribed in rule 17(2)(b) of the LPPCR.6 19. Written Submissions, it was urged that we should make a finding that the do, namely, to set aside the Statutory Demand. He was aware of the deadline as evidenced by the correspondence. Yet, after the Complainant had provided the further information on 4 November 2015 to address the 5 6 [19]. [20]. comments and 13 questions about the background facts relating to her case, there was simply no response from or follow-up by him. It was the Complainant who followed up and sought updates.7 20. queries and requests in a manner that disclosed a lack of care and truthfulness. The following are some instances:8 (i) In his response on 9 November 2015, he said that he was studying [her] case"". (ii) On 10 November 2015, he acknowledged that the deadline to set aside had arrived but merely sought to assure the Complainant that an extension of time could be sought so long as it is filed within a reasonable time (iii) While the Respondent told the Complainant in his email response on 2 December 2015 that he was applying for an extension of time to file the setting aside application, no such step was in fact taken. The Respondent s written explanation dated 26 February 2021 to the Inquiry Panel, had confirmed this fact. (iv) Even up to 18 January 2016, when the Complainant realised that she had been made a bankrupt, it was pointed out that the Respondent had continued to string the Complainant along. There was no attempt on the Respondent to explain the delay. Instead, he sought to pin the blame on the Complainant. 7 8 [22]. 14 21. It was contended that the Respondent was very much aware that the failure to set aside the Statutory Demand could result ina bankruptcy application being taken out against the Complainant. Notwithstanding this, he took no steps to advance the Complainant s case nor to protect her interests beyond the initial enquiry for the chronology and to study the case to have, at the very least, written to the creditor s solicitors to inform them that the Complainant was disputing the debt and would be applying to set aside the Statutory Demand or steps would be taken to apply for an extension of time.9 He was aware of the need to set aside but had simply not made any attempt to prepare the application.10 Court searches were not even done to ascertain if the creditor had commenced bankruptcy proceedings.11 It was argued that the draconian consequences resulting from failure to set aside the Statutory Demand would have left the Complainant irremediably prejudiced. In fact, she was adjudged bankrupt on 24 December 2015 and had to spend the next two and a half years or so instituting proceedings to set aside the Statutory Demand and annul the bankruptcy order made against her. 22. The Law Society also contended that given the scope of the retainer (which was to set aside the Statutory Demand) it was incumbent on the Respondent to make the application, and if necessary, to seek an extension of time to do so. The initial inquiries to understand the case and subsequent silence (apart from furnishing false assurances when pressed for updates) were not sufficient to discharge his professional responsibility.12 9 10 11 12 [24]. 15 23. In respect of the Alternative 1st Charge, Counsel for the Law Society stated that the the retainer (i.e. to set aside the Statutory Demand within the prescribed time) and the gross delay in his management of the case would clearly fall afoul of Section 83(2)(h) of the LPA, given that an LPA.13 24. In respect of the Alternative 2nd Charge, the Law case is that the Respondent failed to keep the Complainant reasonably informed of the application to set aside the failure to apply for extension of time was patently unbefitting of an advocate and solicitor under Section 83(2)(h). He was well aware of the avenue of applying for an extension if he needed more time to understand the matter.14 25. Counsel for the Law Society further noted that the present case bears striking similarity to the cases of Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 Ng Chee Sing and Selena Chiong. In Ng Chee Sing, the Court of Three Judges had found that the solicitor had failed to carry out what he had been instructed to do under his retainer. In Selena Chiong, the respondent had made false representations as to the status of the matter.15 In both cases, the solicitor was found guilty of grossly improper conduct under section 83(2)(b) of the Act and/or misconduct unbefitting of an advocate and solicitor under section 83(2)(h) of the Act. 16 In our case, it was submitted that the Alternative 2nd Charge was similarly made out. 13 14 [38]. [39]. 15 16 Transcript for the Hearing, page 105 at lines 15-18. 16 26. At the Hearing, the Tribunal informed counsel for the Law Society that we were minded to hear arguments for sentencing at the same sitting. Counsel for the Law Society stated that her instructions were to await the outcome before arguing on sentencing. Nonetheless, should the Tribunal find that sanctions were necessary, she submitted that there should at least be a fine, subject to instructions from the Law Society.17 C. 27. SUBMISSIONS At the outset, Counsel for the Respondent stressed that the standard of proof beyond reasonable doubt 18 It was argued that if the Law Society was arguing that there was untruthfulness that elevated the various communications into misconduct, the burden rested on it to prove its case. There should be no adverse inference to be drawn against the Respondent.19 28. It was noted that the necessity of adhering to the criminal standard was because moral censure and professional disapprobation cast upon the solicitor [upon a finding as was stated in Law Society of Singapore v Dhanwant Singh [2020] 4 SLR 736.20 17 Transcript for the Hearing, page 105 at lines 15-18. 18 19 20 Transcript for the Hearing, page 105 at lines 19-22. 17 29. The case of Law Society of Singapore v Harjeet Singh Harjeet that:21 Singh egregious than s 83(2)(h) which was described in Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 not fall within any of the other enumerated grounds but is nevertheless considered 30. Counsel for the Respondent also highlighted that mere negligence does not amount to misconduct and does not warrant sanction under the Act. There are different degrees of negligence. Whether or not a particular degree of negligence amounts to misconduct must be determined by viewing the gravity of the negligent act in the context of the matter whilst taking into account all the circumstances of the case. It was observed in Law Society of Singapore v K Jayakumar [2012] 4 SLR 1232 that an compensation but not censure. The professional lapse must be grave if it is to attract disciplinary sanction (see [1] above). Plainly, several serious lapses in the course of a professional engagement would invite serious consequences, including disciplinary sanction(s). 22 21 22 -[34]. 18 31. does not amount to misconduct that warrants sanction pursuant to the Act. The failure to file the Setting Aside Application and/or the EOT Application was his one lapse and would, at worst, amount to a one-off act of innocent bungling want of skill 23 32. In this regard, the present case can be distinguished from Selena Chiong.24 It was also noted that the respondent in Selena Chiong committed several lapses in her engagement with the complainant. The lapses included providing the complainant with inappropriate advice, failing to advice the client as well as misleading the complainant. The Court of Three Judges had noted that there was a pattern of chronic as a solicitor 33. 25 It was submitted that in contrast, the Respondent here had only committed one lapse, i.e. his failure to file the setting aside application or the application to seek extension of time to do so. Unlike in Selena Chiong, his conduct does not involve the failure to properly advise the Complainant, or misleading her. He was not guilty of any pattern of chronic irresponsibility or problem of attitude. The Respondent had also not attempted to provide excuses for his conduct or justify his actions. He has admitted to the factual averments of these charges. He initiated the filing of the ASOF to assist with streamlining these proceedings so that the Complainant would not be subjected to prolonged proceedings.26 23 24 25 26 s Closing Submissions at [55]. -[57]. [57]. [57]. 19 34. Counsel for the Respondent also submitted that while it is true the Respondent did not do as he had promised, it did not make him dishonest. Counsel for the Respondent specifically referred to an email communication dated 2 December 2015 where he told the Complainant that are applying for extension of time to file the setting aside application. Should not be a problem. Yes, we will send a receipt at the same time when we have prepared all the court papers which you have to sign at our offices on a date to be fixed 27 It was submitted that this email clearly showed that there were still things to be done.28 35. As for the Alternative 2nd the Alternative 1st Charge would apply.29 36. In the circumstances, it was submitted that the Respondent should be acquitted of the Proceeded Charges. 37. In the alternative, should the Tribunal find that one or both of the Proceeded Charges have been proven beyond a reasonable doubt, Counsel for the Respondent submitted that the appropriate punishment for each misconduct unbefitting of an advocate and solicitor would have to depend on the circumstances of the case as a whole. In this regard, Counsel for the Respondent cited several cases that stand for the proposition cases involving grossly improper conduct without dishonesty or deceit will 27 Agreed Bundle of Documents at page 462. Transcript for the Hearing, page 95 at line 8. 29 [66]. 28 20 generally attract a monetary penalty 30 He also reserved his right to file a mitigation plea at the appropriate juncture, if necessary.31 38. Mr Sreenivasan SC urged the Tribunal to apply Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390.32 He argued that no cause of sufficient gravity exists, as the present case does not fall within the category of the of complaints that should be referred to the Court of Three Judges.33 39. Instead, it was submitted that a reprimand or a fine should be imposed. Notably, the fine, if imposed, should be on the lower-end.34 The reasons for his submissions are as follows: (i) The charges are closely connected and arise out of the same transaction; (ii) The Complainant terminated her engagement with the Respondent shortly after she found out that a Bankruptcy Order had been made against the Respondent. The Respondent therefore did not have the opportunity to remedy the situation; (iii) The Respondent received no financial advantage. He returned to the Complainant the Deposit paid and did not charge the Complainant for any work done; 30 31 32 Respondent's Bundle of Authorities, Tab 11. 33 34 Transcript for the Hearing, page 99 at line 24. 21 (iv) The Bankruptcy Order was eventually annulled and the Statutory Demand set aside; (v) The motive of the Complainant is called into question. The Complaint was filed more than two years after the Bankruptcy Order had been annulled and the Statutory Demand set aside, and almost five years after the Bankruptcy Application had been filed. The Complainant had not offered an explanation as to why there was an inordinate delay in the filing of the Complaint. Any complaint she wished to make ought to have been filed earlier; (vi) No allegations of dishonesty have been raised against the Respondent; (vii) The Respondent has no antecedents; and (viii) In admitting to the factual averments of the Proceeded Charges, the Respondent has not unnecessarily prolonged these proceedings but has instead shown remorse. The main question before the Tribunal is whether the facts as adduced from the documents in the ABOD and the ASOF are sufficient to establish that the Respondent is guilty of misconduct unbefitting on advocate and solicitor as alleged in the Proceeded Charges. Burden of Proof 40. At the outset, Counsel for the Respondent submitted that even if the evidence before us would have established negligence on the part of the Respondent, they are 22 insufficient to find him guilty of misconduct unbefitting of an advocate and solicitor Act 41. The burden of proof is on the Law Society to establish that the documents would prove not merely negligent but such that it would amount to misconduct unbefitting of an advocate and solicitor. 42. The Law Society on the other hand contended that the evidence is clear that the Respondent was guilty of misconduct unbefitting of an advocate and solicitor. He had failed to apply to set aside the Statutory Demand made against his client and to apply for an extension of time after the deadline to set aside the Statutory Demand had passed. This resulted in a Bankruptcy Order being made against the Complainant. 43. It is trite law that the standard of proof is to show that the Respondent was guilty of the charges beyond reasonable doubt. 35 We would refer to the case of Public Prosecutor v GCK and another matter [2020] 1 SLR 486 where it was held as follows:36 conceptualised in two ways. First, a reasonable doubt may arise from within the case mounted by the Prosecution. As part of its own case, the Prosecution must adduce sufficient evidence to establish the accused guilt beyond a reasonable doubt on at least a prima facie basis. Failure to do so may lead to a finding 35 36 Law Society of Singapore v Wan Hui Hong James [2013] 3 SLR 221 at [50]. Public Prosecutor v GCK and another matter [2020] 1 SLR 486 at [149]. 23 that the Prosecution has failed to mount a case to answer, or to an acquittal. In those situations, the court must nevertheless particularise the specific the threshold of proof beyond a reasonable doubt. (f) case, not been able to discharge its overall legal burden. (g) The second way in which a reasonable doubt may arise is on an assessment of the totality of the evidence. The inquiry here is intimately preferred over the evidence put forth by the accused person where it is a case (h) The assessment of the evidence under the standard must be made with regard to the totality of the evidence, which logically includes the case mounted by the Defence. The evaluative task is not just internal to the case, but also comparative in nature. Where the evidential burden lies on the Defence and this has not been discharged, the court may find that the Prosecution has discharged its burden 24 of proving its case against the accused person beyond a reasonable doubt. At (i) What the Defence needs to do to bring the case below the requisite threshold is to point to such evidence as would generate a reasonable doubt. That evidence need not necessarily be raised by the Defence; what matters is that a (emphasis added) 44. Thus, the burden on the Law Society is to adduce sufficient evidence which must establish the guilt beyond a reasonable doubt on at least a prima facie basis and that the Respondent has to show at the end of the trial that a reasonable doubt exists on the evidence adduced. Did the acts and/or omissions of the Respondent amount to misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession? 45. With that in mind, we proceed to examine and assess the facts and evidence before us in order to arrive at our decision. 46. The Proceeded Charges were both made under s 83(2)(h) of the Act. In this regard, the Tribunal is mindful that in the case of The Law Society of Singapore v Harjeet Singh [2016] SGDT 9, it was stated that s 83(2)(h) is a catch all provision which can 25 be invoked when the conduct does not fall within any of the other enumerated grounds but is nevertheless considered unacceptable 47. The Tribunal accepts the 37 contention that there are degrees of negligence and whether a particular degree of negligence amounts to misconduct must be determined by viewing the gravity of the negligent act in the context of the matter whilst taking into account all the circumstances of the case. 38 Not all cases of negligence support a finding of due cause.39 Innocent bungling which prejudices the grave nature. Several serious lapses would invite disciplinary sanction. 48. We would therefore examine the undisputed material, correspondences and other documents contained in the ABOD read with the ASOF to evaluate if the conduct was just mere negligence or whether it was sufficiently grave to amount to misconduct on the part of the Respondent in the discharge of his professional duty. 49. On 31 October 2015, the Respondent had requested for documents, information and a study, then to do legal research and then draft affidavit. Fighting a case is not like making instant noidle. It has to be carefully thought over and researched. 40 37 38 Re Lim Kiap Khee; Law Society of Singapore v Lim Kiap Khee [2001] 2 SLR(R) 398 at [19]. Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 at [79]. 40 ABOD at page 424. 39 26 50. On 1 November 2015, the Complainant responded to the Respondent in an email, providing whatever responses she could to the Respondent.41 51. On 2 November 2015, the Respondent emailed the Complainant, raising further questions on the chronology provided in the Compla 201542 and commented on the insufficiency of the chronology:43 Simply put, the chronology of facts you have given to me has too many unexplained holes and lacks sufficient details. Accordingly, at the moment, such a chronology is not very helpful in the preparation of your application to set aside the statutory notice of demand in bankruptcy against you. You need to work harder on the chronology, recall and remember important facts, names, terms of discussion and dates otherwise the court will not believe what you say as there is no credibility in what you say unless the said holes are plugged and the details provided 52. He further emphasised in the same email:44 ACCORDING TO YOU, YOU WERE SERVED WITH THE BANKRUPTCY STATUTORY DEMAND ON 27 OCTOBER 2015, ACCORDING TO THE LAW YOU HAVE 14 DAYS TO APPLY TO SET ASIDE THE STATUTORY DEMAND IE. TO SET IT ASIDE BY 10 NOVEMBER 2015. 41 ABOD at page 426. ABOD at page 431. 43 ABOD at page 432. 44 ABOD at page 432. 42 27 53. On 4 November 2015 at 1.44pm, the Respondent sent an email to the Complainant, proceed to do her best and reply 54. 45 On the same day, the Complainant replied to the Respondent in 2 emails, one at 1.51pm and the other at 11.22pm,46 which sought to provide the Respondent with the further information he had requested for. In these emails, she notably stated that she would provide the Respondent the slips and loan agreement between her and one Sheraz in later emails. 55. On 4 November 2015 at 11.53pm, the Complainant forwarded to the Respondent an email she had previously received on 14 May 2015 from the law firm representing Sheraz, which had forwarded a Supplementary Agreement for her comments.47 In the for applying the credit line with bank of China be of help. It is unclear however whether a copy of the said company contract was in fact forwarded to the Respondent at all as there was no record of such a document in the ABOD. 56. On 5 November 2015 at 11.15am, the Respondent asked the Complainant if the loan agreement was connected to the loan given to the Complainant by ABKL.48 57. On 9 November 2015, the Complainant sent a WhatsApp message to the Respondent in relation to another matter unrelated to the case. At the same time, however, she 45 ABOD at page 435. See ABOD at page 436-442. 47 ABOD at page 444. 48 ABOD at page 452. 46 28 enquired about her case. To this query, the Respondent specifically responded that he studying your case 58. 49 Up to this point, we find that all the Complainant was told was that the Respondent that neither the Setting Aside Application nor the EOT Application was ever made.50 Further, no drafts of either the Setting Aside Application or EOT Application were ever shown to have been prepared during the period he was acting for her. 59. It ought to be borne in mind that the Respondent was at all times fully aware that the deadline was 10 November 2015. Yet, a day before the deadline, when the And how about my case? Studying your case 60. Thus far, the evidence had not shown any sign of concern or urgency on the Studying your case responsible lawyer faced with a situation where time will run out the next day. We find that this conduct is not what is expected of an advocate and solicitor tasked with consequence after time runs out. In the circumstances, we do not accept that the the 49 50 ABOD at page 71 Agreed Statement of Facts at [15]. 29 Respondent as submitted by Mr Sreenivasan, SC. We are satisfied that the conduct was grave enough to amount to misconduct unbefitting of an advocate and solicitor. 61. Counsel for the Respondent had, in his submissions, also attempted to characterise the Respondent as having [dropped] the ball only on 2 December 2015.51 We disagree. viewed as a whole. We do not accept that he the only from 2 December 2015 onwards. In any case, we find that his conduct and attitude towards the Comp the queries of the Complainant on the status of the matter to the time the Complainant terminated his services. 62. On 10 November 2015 (i.e. the date of the deadline to set aside the Statutory Demand), today is the last day for us to file in and put aside right? [correct] but not to worry we can apply for extension of time so long as it is filed within a reasonable period 52 63. From this reply, we note that: (i) There was simply no urgency shown by the Respondent right up to 10 November 2015. 51 52 Transcript of the Hearing, page 92 at lines 13-26. ABOD at page 454. 30 (ii) His conduct throughout his engagement was to say the least, lackadaisical. In particular, he told the Complainant not to worry as he could apply for an extension of time giving the impression that such an extension would be granted as a matter of course. This amounted to an assurance to the Complainant that so long as an application to extend time is made within a reasonable period of time, there is no cause to worry. We are unable to accept this as mere negligence. As an experienced lawyer, the Respondent ought to know that an extension of time is granted at the discretion of the Court and that it would depend on the reasons given to convince the Court to exercise the discretion in favour of the applicant. (iii) serious consequences that would follow if the extension of time was not granted and the Statutory Demand not set aside. Furthermore, there was no evidence adduced to show that the Respondent had even initiated a search to determine if ABKL had taken steps after the expiry of the Statutory Demand deadline to enforce it. There was not even a suggestion or an attempt made to write to the solicitors acting for ABKL on the matter to state the case or to ask for time to respond. 64. The same pattern of conduct continued well after 10 November 2015. On 28 November 2015 (i.e. 18 days after the deadline to set aside the Statutory Demand had expired), the Complainant sent a WhatsApp message to the Respondent as she had not 31 heard from him, to request for updates on her case. There was no response to this message.53 65. Morning Gregory, do you response.54 have time to talk 66. On 1 December 2015, the Complainant once again messaged the Respondent, requesting an update regarding the Statutory Demand. This time, the Respondent For your setting aside, not yet"".55 The Complainant thereafter enquired if there wa the setting aside this message.56 67. On 2 December 2015 at 5.12pm, the Complainant sent an email to the Respondent, requesting a receipt for her fee payment of $7,000.00 and again asked whether there was a deadline for setting aside the Statutory Demand. 57 He responded to this email on the same day at 5.51pm, stating that he was applying for an extension of time which not be a problem receipt all the court papers which [she would] have to sign at [his] offices on a date to be fixed 68. all the court papers 58 We find that this response gave the impression that the Respondent was ready to proceed with the matter and that the relevant court papers would soon be ready for the 53 ABOD at page 455. ABOD at page 455. 55 ABOD at page 455. 56 ABOD at page 456. 57 ABOD at page 461. 58 ABOD at page 462. 54 32 Complainant to sign. However, as stated previously, the evidence before the Tribunal has showed that in fact no court papers were prepared nor were they sent to the Complainant even though the Respondent had stated he would have them at his office for her to sign on a date to be fixed. 69. After 2 December 2015, there appears to be no further communication between the Complainant and the Respondent until 15 January 2016 when the Complainant emailed the Respondent requesting him to set aside the Statutory Demand immediately.59 70. On 18 January 2016, by an email timestamped 12.50pm, the Complainant terminated had her phone line cut off and her bank account suspended because of his negligence. She also noted in the same email that:60 You have not even had the courtesy to respond to my email of 15 January and my registered letter dated 16th January. I am most disappointed by your derelict attitude. 71. stated that it was defamatory of the Complainant to accuse him of negligence. He accepted the termination of his services and agreed to return the $7,000.00 deposit paid to him.61 59 ABOD at page 463. ABOD at page 464. 61 ABOD at page 466. 60 33 72. and unwavering. The Respondent was engaged to set aside the Statutory Demand. This is shown from the instructions from the time the Respondent was first appointed to act for her62 and throughout the entire retainer period.63 Both the EOT Application and Setting Aside Application are inextricably linked and the whole. 73. We find that while the Respondent was correct to seek further information from the entirely coherent thereby contributing to his inability to prepare the Court papers, it would still be the Re proceed in good time. We find instead that it was in fact the Complainant who was making regular inquiries on the state of the application with no meaningful response received from the Respondent. This was conceded by the Respondent. 64 He had repeatedly assured the Complainant that he was in the midst of preparing the necessary court papers, giving no impression that anything more was needed from the Complainant.65 Therefore, on the assumption that the information provided by the Application and the EOT Application forthwith on an urgent basis in view of the tight timeline. On the evidence before us, it was clearly shown that he had taken absolutely no action right up to the date his engagement was terminated. 62 ASOF at [4]. ASOF [11]64 ABOD at page 379-380. 65 ABOD at pages 453, 462 and 466. 63 34 74. Furthermore, even if the Respondent was unaware of the bankruptcy proceedings filed against the Complainant,66 it is clear that he had not even made an effort to establish if a bankruptcy application had been filed after the deadline had passed. This was admitted by Counsel for the Respondent.67 We are of the view that the Respondent ought to have known that bankruptcy proceedings would be the next step to be taken by ABKL (on 15 January 2016 at the latest) if they receive no response from the Complainant. An urgent search would reveal the status of the matter at the material time.68 75. If negligence is involved, the Tribunal agrees with the Respondent that there is always a need to discern and differentiate the various degrees of negligence, taking into account all the facts of the case69 and that the degree of negligence must still be found to be sufficiently grave for the purposes of a finding of misconduct under s 83(2)(h) of the Act. Otherwise, every negligent act or omission would be tantamount to misconduct unbefitting of an advocate and solicitor. 76. The Court of Three Judges in Selena Chiong provided helpful guidance of the standard required for a charge under s 83(2)(h) of the Act: we do have some difficulties in relation to the misconduct complained of in the first and second charges, which misconduct smacks more of incompetence, disorganisation or lack of care on the part of Chiong rather than any deliberate 66 67 Transcript of the Hearing, page 58 at lines 12-13. en Submissions at [25]. ABOD at page 466. 69 Re Lim Kiap Khee; Law Society of Singapore v Lim Kiap Khee [2001] 2 SLR(R) 398 at [19]. 68 35 would be more appropriate to regard the misconduct set out in the first and second charges as unbefitting of an advocate and within the meaning of s 83(2)(h) of the (emphasis added) 77. In a similar vein, the High Court in Zhou Tong stated that professional incompetence and indolence is a cause for concern. It is indeed a fundamental responsibility of the conscientiously and conscionably.70 We are of the view that the Respondent had failed the test in the present case. 78. We also agree with Counsel for the Respondent that unlike the respondent in Selena Chiong, the Proceeded Charges in our case do not involve any failure to advise the Complainant, the failure to appropriately advise the Complainant or misleading the Complainant.71 The irresponsibility displayed by the respondent in Selena Chiong case 79. However, this does not amount to misconduct under the Proceeded Charges. As established in Selena Chiong, a lack of care and incompetence, despite not being deliberate, can still amount to misconduct unbefitting of an advocate and solicitor within the meaning of s 83(2)(h) 70 71 Zhou Tong v Public Prosecutor [2010] 4 SLR 534 at [1]. 36 of the Act. In this regard, we find that his failure in acting competently for the negligence can be said to be relatively short as he was on retainer from 28 October 2015 to 18 January 2016, the point to emphasise is that he did fail to file the Setting instructions knowing all along the consequences that would follow should he fail to do so on time. For that, we find that the Respondent displayed a total lack of care of time should not present a problem.72 The Respondent was irresponsible to give the impression to the Complainant that an extension of time would be granted if it was applied for within a reasonable time without advising her that it has to be on grounds acceptable to the Court. 80. Similarly, the Respondent had failed to keep the Complainant reasonably informed about her case at least from on or around 6 November 2015 onwards. Notably, the Respondent did not provide any updates to the Complainant after he replied to her chaser on 10 November 2015 (i.e. the period from 11 November 2015 to 30 November 2015).73 This was in spite of the fact that there was a real possibility of bankruptcy proceedings being commenced as the deadline for the Setting Aside Application was due to expire on 10 November 2015. In our view, this period of silence from the Respondent was inexcusably lengthy and puts the Complainant at risk of being made a bankrupt. 72 73 ABOD at page 462. ASOF at [11]-[12]. 37 81. For completeness, we note that Counsel for the Law Society appeared to be hinting at an element of dishonesty specifically at the Hearing, and untruthfulness in relation to Application.74 In response, Counsel for the Respondent pointed out that any untruthfulness all the court papers 75 Similarly, he had sent a Whatsapp message to the Complainant on 4 Dece will complete drafting all court papers and call [her] when [he was] ready 76 82. We find that an allegation of untruthfulness is a grave accusation against a solicitor. However, we are unable to make a finding of fact in respect of the state of mind relating to untruthfulness solely by reference to the documents and without cross-examination of the Respondent. In any event, we find that it is unnecessary to find untruthfulness against the Respondent for the purposes of the Alternative 2nd Charge. The fact is that no such Court papers were produced and we are satisfied that the Respondent had by his own admission no further excuse to allege that he needed further information in order to draft the court papers. 83. In the light of our findings, we are satisfied that the Proceeded Charges (i.e. the Alternative 1st Charge and the Alternative 2nd Charge) have been proven beyond a reasonable doubt and that the Respondent is guilty as charged. 74 Transcript for the Hearing, page 77-79 and 103. Transcript for the Hearing, page 93-94. 76 ABOD at page 150. 75 38 APPROPRIATE SENTENCE 84. determination under either s 93(1)(b) or (c) of the Act. 85. Counsel for the Respondent helpfully drew our attention to the decision of the Court of Three Judges in Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 in which the function of a Disciplinary Tribunal was set out: sorts, thereby ensuring that only the most serious complaints are referred to the court of three Judges... the Disciplinary Tribunal may find that the conduct of the advocate and solicitor concerned does fall within one or more of the limbs of s 83(2).. but feels that the conduct itself, whilst technically within the ambit of one or more of these limbs sanction pursuant to s 93(1)(b) of the Act 86. 77 Here, we are of the view that even though we find that the Respondent is guilty as charged, we would agree with Counsel for the Respondent that the present case does not fall within the category of the most serious of complaints.78 Indeed, we accept that Law Society. 77 78 Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 at [28] and [39]. 39 87. We have considered the mitigating factors raised by Counsel for the Respondent. The Respondent did not gain financially from this incident. He had no prior antecedents. We are mindful that any form of dishonesty and/or untruthfulness has not been established beyond reasonable doubt. Plainly, in the short period of his retainer, the Respondent was negligent and had displayed a lack of professionalism in the way he expected of an advocate and solicitor. 88. We also note that the actions had caused the Complainant suffering and inconvenience as she was adjudged a bankrupt. Bankruptcy is undoubtedly a traumatic experience and the Complainant must have suffered during her period of bankruptcy. However, to attribute the lengthy period of suffering (approximately 2.5 years of bankruptcy) solely to the Respondent is unjustifiable. No evidence was adduced to explain why it had taken approximately 2.5 years for the bankruptcy order to be annulled.79 89. In light of all our findings, and pursuant to s 93(1)(b)(i) of the Act, we determine that while no cause of sufficient gravity for disciplinary action exists under s 83 of the Act, the Respondent should be ordered to pay a penalty of $5,000.00, which in our view is sufficient and appropriate to the misconduct committed 90. Pursuant to s 93(2) of the Act, we award costs of $2,500.00 to be paid by the Respondent to the Law Society. 79 Transcript for the Hearing, pages 99-100. 40 Dated this 27th day of June 2022 Mr Giam Chin Toon, SC President Mr Teo Weng Kie Member ",2023-04-08T04:00:51+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2023/,"In the Matter of Ong Lian-Yi Gregory (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2023/",f7216c8274d9751c92211a7f59ab3be9ceab5116,"[""title"",""pdf-link"",""pdf-content"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,4,4,1,1049,"In the Matter of Clarence Lun Yaodong (Respondent), Advocate & Solicitor","In the Matter of Clarence Lun Yaodong (Respondent), Advocate & Solicitor The Council of the Law Society referred information relating to the conduct of the Respondent pursuant to section 85(2) of the Legal Profession Act (LPA). Between October 2019 and January 2020, the Respondent offered training contracts to two individuals, one Mr Lim Teng Jie (Mr Lim) and one Ms Trinisha Ann Sunil (Ms Sunil). The Respondent was not, at any material time, qualified to act as a supervising solicitor pursuant to rule 18 of the Legal Profession (Admission) Rules 2011. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Siraj Omar SC and Mr Tan Jee Ming as DT member to investigate the complaint. Five charges (and its alternatives for the First, Second, Fourth and Fifth Charges) were preferred against the Respondent: First Charge (Alternative First Charge under Section 83(2)(h) of the LPA) For improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act (Chapter 161) (LPA), in that the Respondent had failed to ensure Mr Lim and Ms Sunil, who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, were supervised by a supervising solicitor who had in force a practising certificate for a total of not less than five out of seven years immediately preceding the date of the supervision of each of the said practice trainees, in breach of Rule 36(2)(a)(ii) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge (Alternative Second Charge under Section 83(2)(h) of the LPA) For contravening Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011, by being the supervising solicitor during the practice training periods of Mr Lim and Ms Sunil, who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, while having in force a practising certificate of a period of less than five out of the seven years immediately preceding the date of the commencement of the Respondent’s supervision of Mr Lim and Ms Sunil, which warrants disciplinary action within the meaning of section 83(2)(j) of the LPA. Amended Third Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, by behaving in a manner inconsistent with the public interest by being the supervising solicitor during the practice training periods of Mr Lim and Ms Sunil, who were practice trainees under separate practice training contracts with Foxwood LLC, when not having in force a practising certificate of a period of not less than five out of the seven years immediately preceding the date of the commencement of the Respondent’s supervision of Mr Lim and Ms Sunil as required under Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011. Fourth Charge (Alternative Fourth Charge for a Breach of Rule 8(3)(b) PCR) For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, by taking unfair advantage of Ms Sunil by demanding that she pay Foxwood LLC the sum of $2,000 when this sum was not recoverable by due process of law, in breach of Rule 8(3)(a) of the PCR. Fifth Charge (Alternative Fifth Charge for Acting in a Manner Contrary to Position as a Member of an Honourable Profession in Breach of Rule 8(3)(b) of the PCR) For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, by acting in a manner which was deceitful by representing to Mr Lim, a practice trainee of Foxwood LLC, that by May 2020 the Respondent would meet the requirements under Rule 18(1) of the Legal Profession (Admissions) Rules 2011 to be Mr Lim’s supervising solicitor during his practice training period when the Respondent knew this to be false, in breach of Rule 8(3)(b) of the PCR. Findings and Determination of the DT, Council’s Sanctions The DT found that the First Charge, Second Charge, Alternative First Charge, Alternative Second Charge and Third Charge, were made out. The Fourth Charge, Alternative Fourth Charge, Fifth Charge, and Alternative Fifth Charge were not made out. The DT cited the principle in Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320 (Selena Chiong) whereby all solicitors ought to be familiar with the rules made under the LPA, and will be deemed to be aware of their existence and applicability. It followed that each advocate and solicitor bore personal responsibility to ensure that the applicable rules of practice are strictly adhered to in all areas of his/her practice. The DT found that there was cause of sufficient gravity for the matter to be referred to the Court of Three Judges (C3J): Under section 83(2)(b) of the LPA in respect of the First Charge; Under section 83(2)(j) of the LPA in respect of the Second Charge; Under section 83(2)(h) of the LPA in respect of the Alternative First Charge, Alternative Second Charge and the Third Charge. The Respondent was further ordered by the DT to pay the Law Society’s costs. Council accepted the findings and recommendations of the DT and accordingly referred the matter to the C3J. The C3J found that due cause was proved under section 83(2)(j) of the LPA on the Second Charge. The C3J “agreed with the DT that the respondent “simply did not care whether there were any rules and, if so, what they were.” The Respondent was suspended for 18 months with effect from 7 November 2022, and it was ordered for costs of $10,000 to be paid by the Respondent.* To access the full report, click here. *The decision of the C3J can be found in Law Society of Singapore v Clarence Lun Yaodong [2022] SGHC 269. ",https://lawgazette.com.sg/wp-content/uploads/2023/03/dtr_mar_2023_c.pdf,"DT 13 OF 2021 IN THE MATTER OF CLARENCE LUN YAODONG AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Siraj Omar, S.C. – President Tan Jee Ming – Advocate Solicitors for The Law Society of Singapore Solicitors for the Respondent Mr Sarbjit Singh Chopra / Mr Roshan Singh Chopra (Selvam LLC) Mr Mark Seah / Mr Lau Wen Jin (Dentons Rodyk & Davidson LLP) Dated this 22nd day of March 2022 Introduction 1. The Law Society of Singapore (the “Law Society”) brought five charges against Mr Clarence Lun Yaodong (the “Respondent”)1, a solicitor of 8 years’ standing as at the commencement of these proceedings in 2021. 2. The Respondent admits that he had purported to act as the supervising solicitor for two individuals, Mr Lim Teng Jie (“Mr Lim”) and Ms Trinisha Ann Sunil (“Ms Sunil”), at different periods during their practice training at Foxwood LLC between October 2019 and January 2020.2 The Respondent admits that he was not qualified to act as a supervising solicitor during the material time3 and the fact that he purported to do so is a clear breach of Rule 18(1) of the Legal Profession (Admission) Rules 2011 (the “Admission Rules”). The charges levied against him in these proceedings arise from those breaches as well as events which are alleged to have occurred after those breaches were discovered. 3. Having carefully considered the facts of the case, the evidence of the witnesses and the parties’ respective submissions, we find that: (a) Cause of sufficient gravity for disciplinary action exists: (i) under Section 83(2)(b) of the Legal Profession Act (Cap. 161, Rev Ed 2009) (the “Act”) in respect of the First Charge (as defined below); 1 2 3 The Law Society’s Closing Submissions (“LSCS”) [31]. The Respondent’s Closing Submissions (“RCS”) [1]. RCS [1]. 1 (ii) under Section 83(2)(j) of the Act in respect of the Second Charge (as defined below); and (iii) under Section 83(2)(h) of the Act in respect of the Alternative First Charge, the Alternative Second Charge and the Third Charge (all as defined below), and (b) The Fourth, Alternative Fourth, Fifth and Alternative Fifth Charges (all as defined below) were not made out. 4. We set out our grounds below. We deal first with the Second Charge, which the Law Society described as setting out “the crux of the misconduct of the Respondent”4. We then deal with the First Charge and remaining three charges in numerical order. The Second Charge and Alternative Second Charge 5. The Second Charge alleges: 5 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of contravening Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011, by being the supervising solicitor during the practice training periods of [Mr Lim] and [Ms Sunil], who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, while having in force a practicing certificate of a period of less than 5 out of the 7 years immediately preceding the date of the commencement of your supervision of Mr Lim and [Ms Sunil] which warrants disciplinary action within the meaning of Section 83(2)(j) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 4 5 The Law Society’s Statement of Case (Amendment No. 2) (the “SOC”) page 8. SOC page 13. 2 6. The Law Society also alleged in the alternative that the conduct described in the Second Charge amounted to “misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession” within the meaning of Section 83(2)(h) of the Act (the “Alternative Second Charge”).6 7. To succeed in these charges, the Law Society must establish that (a) Mr Lim and Ms Sunil were practice trainees serving their respective practice training periods under separate training contracts with Foxwood LLC, (b) the Respondent purported to act as their supervising solicitor during their respective practice training periods, and (c) the Respondent was not qualified to do so by reason of not having a valid practicing certificate for at least five out of the seven years immediately preceding the respective commencement dates of Mr Lim’s and Ms Sunil’s training contracts. 8. Each of these facts are admitted. The Respondent admits that he acted as Mr Lim’s supervising solicitor “with effect from 16 December 2019” and as Ms Sunil’s supervising solicitor “with effect from 2 January 2020”.7 He also admits that he held a practicing certificate for a total of only two years and 10 months as at 1 October 2019.8 9. Rule 18(1) of the Admission Rules prohibits a solicitor from acting as a supervising solicitor of a practice trainee unless (i) he is in active practice in a Singapore law practice, and (ii) has had in force a practicing certificate for a total of “not less than 5 out of the 7 years immediately preceding the date of commencement of his supervision of the practice trainee”. 6 7 8 SOC page 14. Defence [10] read with SOC [15]. Defence [9] read with SOC [14]. 3 10. There is therefore no question that the Respondent has breached Rule 18(1) of the Admission Rules. The only question therefore is whether his conduct warrants disciplinary action within the meaning of Section 83(2)(j) of the Act for the purposes of the Second Charge and/or amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession for the purposes of the Alternative Second Charge. 11. The Respondent submits that both questions ought to be answered in the negative.9 We shall deal with each of his arguments in turn. Alleged mitigating circumstances 12. The Respondent points to what he describes as mitigating circumstances. First, he says that he admitted to having acted as supervising solicitor for Mr Lim and Ms Sunil “even though an alternative would have been to argue that they had in fact no Supervising Solicitor”, and that his admission therefore “resolved this issue in [the Law Society’s] favour, even though the position was ‘grey’, stepping up to shoulder the blame”.10 13. During oral closing arguments, the Respondent’s counsel clarified that the Respondent’s argument was simply that he could have argued that there was no supervising solicitor in law – i.e. as defined under the Act.11 However, this argument also does not take him very far. The fact there was no supervising solicitor for the purposes of the Act is undeniable given that the Respondent did not satisfy the requirements under the Act. The critical fact is that he admits to having acted as Mr Lim’s and Ms Sunil’s supervising RCS [59]. RCS [46]. 11 Transcript 7 Dec 2021, 42(9) to 44(6). 9 10 4 solicitor despite not having satisfied the requirements under the Act. This is the very substance of the breach before us. 14. The Respondent appeared to us to be seeking credit for admitting that he had acted as supervising solicitor for Mr Lim and Ms Sunil – i.e. for telling the truth. Telling the truth is not mitigatory – it is the absolute minimum expected of any advocate and solicitor. To claim that he ought to be given credit for not arguing that Mr Lim and Ms Sunil had no supervising solicitor (an argument that he must know to be false given his pleaded admission) is an appalling submission, and one which we completely reject. 15. Second, he argues that the responsibility for ensuring that the practice trainees taken in by Foxwood LLC are properly supervised is shared between the Respondent and Foxwood LLC’s sole director at that time Mr Goh Keng How (“Mr Goh”).12 He argues that it would therefore be unfair to pin the effect of this “lapse” solely on him. 16. Indeed, the Respondent appears to suggest that Mr Goh should bear most of the blame for alleged systemic regulatory and compliance failures at Foxwood LLC.13 He argues that Mr Goh was “responsible for regulatory and compliance matters”14 but (i) “did not raise any concerns regarding regulatory compliance”15 despite the Respondent having kept him in the loop on the hiring of practice trainees, and (ii) “failed to provide any form of guidance or policy relating to the employment of trainees”16 by Foxwood LLC. 17. Mr Goh testified on behalf of the Law Society. He admitted that he had not familiarized himself with the Admission Rules and was not aware that the Respondent was not RCS [47]. RCS [48]. 14 Ibid. 15 Ibid. 16 Ibid. 12 13 5 qualified to act as supervising solicitor for Mr Lim and Ms Sunil. It was also patently clear to us from Mr Goh’s testimony that he was not someone who placed a great deal of importance on the need to comply strictly with the applicable rules and regulations governing practice. 18. However, Mr Goh’s conduct is not the subject of these proceedings. Even if Mr Goh’s conduct had fallen below the standard expected of advocates and solicitors (on which issue we make no finding), it does not mitigate the Respondent’s culpability. 19. The Law Society correctly highlighted that all solicitors ought to be familiar with the rules made under the Act and will at any rate be deemed to be aware of their existence and applicability: Law Society of Singapore v Chiong Chin May Selena (“Selena Chiong”).17 It follows therefore that each advocate and solicitor bears personal responsibility to ensure that the applicable rules of practice are strictly adhered to in all areas of his practice. 20. It was incumbent on the Respondent to familiarize himself with the relevant rules governing his practice as an Advocate and Solicitor. In particular, he ought to have familiarized himself with the rules governing the supervision of practice trainees before hiring Mr Lim and Ms Sunil as practice trainees. He ought, at the very least, to have satisfied himself that he met the statutory requirements for being a supervising solicitor. 21. The Respondent patently failed to do so – he admits he failed to familiarize himself with the relevant rules relating to being a supervising solicitor.18 Indeed, the evidence before us suggests that he simply did not care whether there were any rules and, if so, what 17 [2005] 4 SLR(R) 320, referred to at LSCS [48]. 18 Transcript 17 Dec 2021, 26(29) to 27(2). 6 they were. He claimed that he assumed that someone in the firm (presumably Mr Goh) would have told him if what he proposed to do contravened any applicable rules. That argument does not assist him. The onus was on him to ensure he complied with all relevant rules and regulations governing his practice. His failure to do so is not mitigated by any failing on the part of Mr Goh or anyone else in the firm. 22. Third, he claims that he always believed that “he had a shield” on regulatory issues – namely, that Mr Goh “would take care of regulatory and compliance issues”.19 This is essentially the same argument as above and is rejected for the same reasons. 23. Fourth, the Respondent claims that he did “all he could to rectify the mistake and alleviate the situation for [Mr Lim]”20 by trying “to find solutions to [Mr Lim’s] predicament”21. Mr Lim did not agree that the Respondent had been of much help in resolving the predicament he found himself in. However, while we are prepared to accept that the Respondent did take some steps to try and help, we do not think these steps have much mitigatory value. Mr Lim eventually secured a training contract with another firm through his own endeavors and not because of anything that the Respondent did. 24. We therefore find that none of the alleged mitigatory circumstances raised by the Respondent are of any assistance to him in diminishing his culpability. 19 20 21 RCS [49]. The Respondent’s AEIC, at [51]. The Respondent’s AEIC, at [54]. 7 The Respondent’s state of knowledge 25. The Law Society argues that the Respondent was aware from “at least November 2019”22 that he did not meet the requirements to act as a supervising solicitor for trainees. This is a serious allegation. If true, it would mean the Respondent knew he did not satisfy the requirements under the Act before either Mr Lim or Ms Sunil commenced their training period. It would also mean that the Respondent had deliberately ignored the provisions of the Admission Rules and then dishonestly alleged in these disciplinary proceedings that the breach had been inadvertent. 26. The Law Society relies on the evidence of Mr Tan Yong Xian, Selwyn (“Mr Tan”) and Mr Giam Zhen Kai (“Mr Giam”). Both Mr Tan and Mr Giam are Advocates and Solicitors. Mr Tan practiced at Foxwood LLC between September 2019 and April 2020. Mr Giam practiced at Nair & Co. LLC with the Respondent from February 2019 before moving with the Respondent to Foxwood LLC in July 2019 and practicing there until November 2019. 27. Mr Tan’s evidence was that when he learnt that two practice trainees would be joining Foxwood LLC’s dispute resolution team in December 2019, he “had some concern that [the Respondent] would be the supervising solicitor for these [two] trainees” since he was the only partner who handled litigation and dispute resolution at the firm.23 28. Mr Tan said that these concerns prompted him to check the applicable rules and the Respondent’s LinkedIn profile, and that he then concluded that “it was unlikely that [the Respondent] would be able to meet the criteria” under the Rules. He said that during a break in trial proceedings sometime in November 2019, he had highlighted the 22 23 LSCS [42]. Affidavit of Evidence-in-Chief of Tan Yingxian, Selwyn (“Mr Tan’s AEIC”), at [8] and [9]. 8 applicable rules to the Respondent and had “asked [the Respondent] directly if he had sufficient years of practice with a practicing certificate in force to supervise trainees”. Mr Tan said that Respondent had replied that “there would be ‘no issue’” and that Mr Goh would be the trainees’ supervising solicitor. 24 29. Mr Giam testified that soon after he joined Nair & Co. LLC in February 2019, he was told that the reason Mr Suresh Nair was his supervising solicitor (and not the Respondent) even though he spent “the vast majority of [his] practice training period assisting [the Respondent]” was because the Respondent was not qualified to act as supervising solicitor.25 30. Mr Giam said that during the period when the Respondent was considering joining various other firms, the Respondent had assured him that his practice training “would not be affected as [the Respondent] would be able to assign qualified persons to be [his] supervising solicitor in those firms”.26 31. Mr Giam also said that he had accompanied the Respondent to interview Mr Lim sometime in early October 2019, and that he had asked the Respondent shortly after the interview whether the Respondent would be Mr Lim’s supervising solicitor. Mr Giam said the Respondent replied that “he would not be Mr Lim’s supervising solicitor and that one of the other partners of Foxwood LLC would be named as Mr Lim’s supervising solicitor”.27 24 25 26 27 Mr Tan’s AEIC at [12] to [14]. Affidavit of Evidence-in-Chief of Mr Giam Zhen Kai (“Mr Giam’s AEIC”) at [5] and [6]. Mr Giam’s AEIC at [7] and [8]. Mr Giam’s AEIC at [10] to [12]. 9 32. The Respondent objected to the admission of these portions of the evidence of Mr Tan and Mr Giam and applied to strike them out on several grounds, namely (i) that these conversations had taken him by surprise as they were material facts that ought to have been, but were not, pleaded; (ii) that the evidence was not relevant, (iii) that he did not know the specific charge(s) to which this evidence relates, and (iv) that the evidence was being raised late in the day. 33. Having heard parties, we dismissed these objections and allowed the evidence in. The objection that the conversations were not pleaded was misconceived. The material allegation was that the Respondent knew or ought to have known that he was not sufficiently qualified. This was pleaded. The conversations referred to by Mr Tan and Mr Giam formed part of the evidence tendered by the Law Society in support of that material allegation. It is trite that evidence need not be pleaded. 34. The objection as to the relevance of the evidence is equally unfounded. The issue of whether the Respondent knew he was not qualified is pleaded and in issue. While the Respondent admits that he was not qualified, the main plank of his mitigation is that his breach of the relevant regulation had been purely inadvertent – i.e. he had not known that he was not qualified. The conversations, if proved, would go towards undermining that assertion of inadvertence and are therefore plainly relevant. 35. As to the objection that the Respondent did not know which charge(s) the evidence related to, there is no requirement for each piece of evidence to be tagged to a particular charge. In any event, the nature of the conversations make it quite apparent which charge(s) they relate to. 36. Finally, the evidence was not adduced late in the day. The evidence of the conversations is contained in the affidavits of evidence-in-chief of Mr Tan and Mr Giam, 10 both of which were exchanged together with the affidavits of evidence-in-chief of all the other witnesses. The Respondent’s main complaint appears to be that the conversations should have been raised at the pleading stage. For the reasons stated above, we disagree. 37. Having dismissed the Respondent’s objections, we nonetheless granted him leave to address these alleged conversations either by way of a supplementary affidavit of evidence-in-chief or via oral testimony. The Respondent chose to do so by way of oral evidence. He claimed that his relationship with Mr Tan and Mr Giam had soured towards the end of their time with Foxwood LLC and suggested that this soured relationship tainted their evidence against him. 38. Both Mr Tan and Mr Giam candidly admitted that their relationship with the Respondent had soured. However, they steadfastly maintained that their evidence, particularly in respect of the respective conversations with the Respondent, was true. We would also be slow to find that two Advocates and Solicitors would lie under oath, especially when they had absolutely nothing to gain from doing so and could face severe repercussions if they did so and were found out. 39. Critically, the Respondent did not deny the conversations with Mr Tan and Mr Giam but said that he could not recall if they had taken place.28 At the hearing, the Respondent did not directly challenge the evidence of Mr Tan and Mr Giam in respect of these respective conversations. Instead, he sought to undermine their evidence on this issue by challenging their evidence on the events that led to these alleged conversations. Specifically, he challenged Mr Tan’s evidence on when and why he had searched the 28 RCS [82]. 11 Respondent’s LinkedIn profile29 and Mr Giam’s evidence on how he had come to learn that the Respondent was not qualified to act as supervising solicitor.30 40. While we accept that they were some inconsistencies in the evidence of both Mr Tan and Mr Giam, we find that these inconsistencies do not detract from their unchallenged evidence on their respective conversations with the Respondent. Both Mr Tan and Mr Giam were unwavering in their evidence that they had each, on separate occasions, had conversations with the Respondent about whether he was qualified to act as a supervising solicitor. Having reviewed all the evidence on this issue, we conclude that the conversations alleged by Mr Tan and Mr Giam did take place. 41. The Respondent also argued that the conversations had not registered in his mind even if they had taken place.31 He points to certain concessions made by Mr Tan and Mr Giam during cross-examination in support of this assertion. Mr Tan agreed that his conversation with the Respondent had occurred during an intensive trial and the Respondent could have been preoccupied with the trial.32 Mr Giam agreed that his conversation with the Respondent was not an extended one and he could not provide details of the conversation save that it had occurred shortly after the interview with Mr Lim sometime in October 2019.33 42. We are unable to conclude with the necessary degree of certainty that these conversations had registered in the Respondent’s mind or that he was otherwise aware, prior to 6 January 2020, that he was not qualified to act as a supervising solicitor for practice trainees. We highlight several factors in this regard. First, the fact that the 29 30 31 32 33 RCS [82(g)] to [82(l)]. RCS [82(b)] to [82(f)]. RCS [83]. Transcript 28 Oct 2021 46(21) to 46(22). Transcript 28 Oct 2021 7(5) to 8(18). 12 conversations were one-off, coupled with the concessions by Mr Tan and Giam, suggest it is possible that the conversations had not in fact registered in the Respondent’s mind. 43. Second, there is no other contemporaneous evidence (apart from the conversations) that the Respondent was aware that he was not sufficiently qualified. As stated above, the Respondent’s evidence is that he was not aware of the relevant regulations and had not bothered to check. There is no evidence to suggest that this is untrue. 44. Third, the Respondent informed Mr Lim that he was not qualified to be his supervising solicitor on or around 14 January 2020, shortly after he says he discovered his lack of qualifications on 6 January 2020. If the Respondent had in fact been aware all along that he was not qualified, there is no reason why he should suddenly choose to admit this fact to Mr Lim in January 2020. The fact that he did so is more consistent with him only having discovered this fact shortly before, as he claimed. Is Section 83(2)(j) of the Act satisfied? 45. The Second Charge asserts a breach of Section 83(2)(j) of the Act, which relates to contraventions of the provisions of the Act that warrant disciplinary action. The Respondent contends that his conduct did not cross the threshold to warrant disciplinary action.34 46. We make two observations. First, while the section refers to provisions of the Act, it must necessarily extend to and encompass contraventions of subsidiary legislation and regulations promulgated under the Act. Second, a plain reading of the provision suggests that some contraventions of provisions of the Act may not warrant disciplinary 34 RCS [59]. 13 action. It follows that the mere fact that the Respondent may have contravened a provision of the Act does not necessarily mean that his conduct warrants disciplinary action. This is not controversial and is consistent with the general tenor of the disciplinary framework established under the Act. 47. For the reasons set out below in our discussion in relation to the Alternative Second Charge,35 we find the Respondent’s conduct in breaching Rule (1)(b) of the Admission Rules to be of sufficient severity to warrant disciplinary action and that the Law Society has therefore made out the Second Charge. Is Section 83(2)(h) of the Act satisfied? 48. The Alternative Second Charge asserts a breach of Section 83(2)(h) of the Act, which relates to conduct that amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. The Respondent contends that his actions do not amount to such misconduct.36 49. The standard of unbefitting conduct is met if a solicitor’s conduct is such as would render him unfit to remain as a member of an honourable profession, and the relevant test is whether reasonable people, on hearing what the solicitor had done, would have said without hesitation that as a solicitor he should not have done it: The Law Society of Singapore v Ezekiel Peter Latimer (“Ezekiel Peter”).37 35 36 37 Paragraphs 48 to 52 below. RCS [59]. [2019] 4 SLR 92, [38]. 14 50. The Respondent describes his conduct as “a case of simple negligence”.38 He says he made an honest mistake. During oral closing arguments, the Respondent’s counsel explained that the mistake was “in failing to familiarize himself with the relevant rules relating to … being a supervising solicitor”.39 51. We disagree. This was not a case of a mistake or oversight. A mistake would have been if (for example) the Respondent had incorrectly calculated the number of years he had been in practice and thereby wrongly conclude that he was sufficiently qualified. That was not what happened. The evidence clearly showed that the Respondent did not know what the qualifying requirements were to be a supervising solicitor and did not bother to check. In fact, he admitted as much. 52. While the Respondent repeatedly claimed he had acted under a mistaken belief that he was qualified to act as a supervising solicitor, he could not provide an answer when asked what the basis of that belief was. Indeed, it would appear from his evidence that the first time he familiarized himself with the relevant rules was sometime on 6 January 2020 while waiting for a flight back from Perth.40 53. Applying the test set out in Ezekiel Peter, when asked whether an Advocate and Solicitor should have taken on the role of supervising solicitor for practice trainees without first familiarizing himself with the applicable rules and ensuring that he was qualified to take on the role (which is what the Respondent admits happened in this case), we have no doubt that a reasonable person would have said that he should not. 38 39 40 RCS [61]. Transcript 17 Dec 2021 26(30) to 27(2). Respondent’s AEIC [36]. 15 54. We therefore find that the Respondent’s conduct as particularized in the Alternative Second Charge amounted to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession and that the Law Society has made out the Alternative Second Charge. The appropriate sanction 55. The function of a Disciplinary Tribunal is to act as a filter to determine if there is ‘cause of sufficient gravity’ that could, on a finding by the Court of Three Judges, be ascertained to constitute ‘due cause’ that merited the imposition of one of the range of sanctions prescribed in Section 83(1) of the Act: Law Society of Singapore v Jasmine Gowrimani d/o Daniel (“Jasmine Daniel”).41 56. It is not for us to determine whether ‘due cause’ has been established in this case – that determination lies solely within the purview of the Court of Three Judges. Our role is to decide whether ‘cause of sufficient gravity’ has been established, and for that we need only be satisfied that there was a prima facie case on the relevant evidence that ‘due cause’ might be present: Jasmine Daniel.42 There are three options open to us pursuant to Section 93(1) of the Act: (a) Determine that no cause of sufficient gravity for disciplinary action exists; (b) Determine there while no cause of sufficient gravity for disciplinary action exists, the legal practitioner should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or 41 [2010] 3 SLR 390, at [37]. 42 Ibid., at [31]. 16 (c) Determine that cause of sufficient gravity for disciplinary action exists, in which case the Law Society is obliged pursuant to Section 94 of the Act to make an application under Section 98 of the Act to the Court of Three Judges. 57. The Respondent submits that his conduct evinces no cause of sufficient gravity. He argues that his conduct was merely a mistake or an oversight. We have explained above why we disagree. 58. The Respondent also refers to and relies on two cases (The Law Society of Singapore v Anand K Thiagarajan43 and The Law Society of Singapore v Anand Kumar s/o Toofani Beldar)44 which he submits are factually akin to the present case and where the respective Disciplinary Tribunals found there to be no cause of sufficient gravity. 59. We do not think these cases take the Respondent very far. Neither of these cases deal with breaches of the Admission Rules. In any event, it is trite that whether cause of sufficient gravity is made out in any given case must necessarily turn on the specific facts and circumstances of that case. 60. Turning to the appropriate sanction, we are acutely conscious of the importance of ensuring that members of the public have access to quality legal advice. The framework for the training of advocates and solicitors seeks to ensure the quality of persons being called to Bar by way of the following three-pronged framework: 43 [2009] SGDT 2. 44 [2011] SGDT 12. 17 (a) Stringent criteria for those wishing to become a ‘qualified person’ as defined in Section 2(1) of the Act, including limiting the number of universities whose law degrees are recognized in Singapore; (b) Requiring them to successfully complete the Preparatory Course leading to Part B of the Singapore Bar Examinations, as well as Part A of the Singapore Bar Examinations for those who obtained their law degree from a recognized foreign university; and (c) Requiring them to undertake and complete six months of relevant legal training, relevant legal practice or work. The Admission Rules specify that such relevant legal training must be carried out under the supervision of suitably qualified person. This includes a solicitor in active legal practice for “a total of not less than 5 out of the 7 years immediately preceding the date of commencement of his supervision”.45 61. The aim of these requirements is plainly to ensure that anyone granted the privilege of admission to the Bar is equipped with the relevant skills to provide clients with legal advice of the requisite standard. Rule 18(1) of the Admission Rule is therefore an important pillar in the framework for ensuring the quality of advocates and solicitors called to the Bar. This in turn helps ensure that the broader public interest of ensuring the quality of legal advice available to clients is met. 62. Viewed in this context, the Respondent’s breach of Rule 18(1) of the Admission Rule is not simply one of “oversight in failing to familiarize himself with the applicable rules”.46 45 Rule 18(1) of the Admission Rules. 46 RCS [61]. 18 The undisputed facts evince a complete disregard for and disinterest in the rules governing his suitability to act as supervising solicitor. Not only did he not know the applicable rules, he also did not (and could not be bothered to) check. Such conduct imperiled the careful framework put in place to ensure the quality of advocates and solicitors admitted to the Bar. 63. We therefore find that cause of sufficient gravity for disciplinary action exists in respect of both the Second Charge and the Alternative Second Charge. The First Charge and Alternative First Charge 64. The First Charge alleges: 47 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching rule 36(2)(a)(ii) of the Legal Profession (Professional Conduct) Rules 2015 …, as part of the management of a Singapore law practice known as Foxwood LLC, by failing to ensure that [Mr Lim] and [Ms Sunil], who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, were supervised during each of their practice training periods with Foxwood LLC by a supervising solicitor who had in force a practicing certificate for a total of not less than 5 out of 7 years immediately preceding the date of the supervision of each of the said practice trainees, which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 65. The Law Society also alleged in the alternative that the conduct described in the First Charge amounted to “misconduct unbefitting an advocate and solicitor as an officer of 47 SOC page 8. 19 the Supreme Court or as a member of an honourable profession” within the meaning of Section 83(2)(h) of the Act (the “Alternative First Charge”).48 66. The Responded raised a preliminary objection to the First Charge and Alternative First Charge, arguing that they were unnecessarily duplicative given the Second Charge.49 He relied on Section 308(1) of the Criminal Procedure Code (the “CPC”), which states: “Limit of punishment for offence made up of several offences 308 – (1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the person who committed the offence shall not be punished with the punishment of more than one of such offences unless it is expressly provided. (2) Where – (a) anything is an offence falling within 2 or more separate definitions of any law in force for the time being by which offences are defined or punished; or (b) several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, The person who committed the offence shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences.” 67. The objection is misconceived. A plain reading of Section 308(1) of the CPC clearly shows that it does not prevent a person facing multiple charges arising from the same set of facts. Rather, it is meant to regulate the punishment that can be meted out to such an individual. There is therefore nothing improper with the First Charge and Alternative First Charge arising from the same facts as the Second Charge. 68. The First and Alternative First Charges assert a breach of Rule 36(2)(a)(ii) of the Legal Profession (Professional Conduct) Rules 2015 (the “PCR”), which states: 48 49 SOC page 12. RCS [7] to [10]. 20 “Responsibilities to practice trainees in law practice 36 – (2) The management of a law practice must ensure that all of the following apply to each practice trainee who serves the practice training period under a practice training contract with the law practice: (a) 69. The practice trainee is supervised by a supervising solicitor who – (i) is in active practice in the law practice; and (ii) has in force a practicing certificate for a total of not less than 5 out of the 7 years immediately preceding the date the supervision of the practice trainee starts.” Rule 36(2)(a) of the PCR imposes an obligation on the management of a law practice in respect of the supervision of practice trainees. It is common ground that this obligation was breached in relation to Mr Lim and Ms Sunil. The only issue therefore is whether the Respondent was part of the management of Foxwood LLC at the material time. 70. The Law Society argues that the Respondent was a “de-facto director of Foxwood [LLC] or was in any event part of [its] management”.50 It argues that the fact that the Respondent had not been formally appointed as a director of Foxwood LLC and had not been notified as such to the Law Society was irrelevant, and that the substance of the Respondent’s role must trump its form. 71. The Respondent argues that he was neither a de facto director of Foxwood LLC nor otherwise part of its management, but was at all times only a “high-level employee”.51 While he accepts that he effectively ran Foxwood LLC’s dispute resolution department, he claims that Mr Goh retained overall control of the department and the rest of the firm and that he did not have “visibility or access to Foxwood [LLC’s] bank accounts, accounting information and clients outside of the [dispute resolution department]”.52 50 51 52 LSCS [60]. RCS [19]. RCS [20]. 21 72. Mr Goh’s evidence53 was that the Respondent ran the entire dispute resolution practice of Foxwood LLC – hiring his own staff, taking on his own clients and running the practice as he saw fit. Mr Goh explained that Foxwood LLC would supply back-end support (e.g. software, payroll and human resource services) but would be compensated for these services. The Respondent would be “entirely responsibly for the profit, losses and sustainability of the dispute resolution practice”.54 73. Mr Goh’s evidence is supported by a Partnership Agreement between Foxwood LLC and the Respondent (the “Agreement”).55 While the copy of the Agreement in evidence was undated and unsigned, the Respondent does not dispute that he entered into the Agreement with Foxwood LLC. Indeed, the Respondent refers to and relies on some of the terms of the Agreement in support of his argument that he was not part of the management of Foxwood LLC56 - an argument we deal with below.57 74. The Agreement expressly states that Foxwood LLC and the Respondent had entered into the Agreement “in order to govern their relationship as stakeholders in [Foxwood LLC] and the management and the affairs of [Foxwood LLC], in particular, the Dispute Resolution Division”.58 Clause 2 of the Agreement states as follows: “2. DISPUTE RESOLUTION DIVISION 2.1 [The Respondent] shall be responsible for starting, heading and maintaining the Dispute Resolution Division. 53 Affidavit of Evidence-in-Chief of Goh Keng Haw (“Goh’s AEIC”), at [14]. Ibid.. Exhibit GKH-2 of Goh’s AEIC. 56 See, for example, [15] and [16] of the Respondent’s AEIC. 57 See paragraphs __ to __. 58 Recital C, at page 16 of Goh’s AEIC. 54 55 22 2.2 [The Respondent] shall have authority to, and be responsible for: (a) Accepting and opening files from new clients and commencing work on behalf of such clients, subject always to satisfactory client due diligence and conflicts check; (b) Signing off on all correspondences (only with respect to the Dispute Resolution Division) for and on behalf of [Foxwood LLC]; and (c) Hiring, employing and terminating [employees of the Dispute Resolution Division]. 2.3 In consideration of the above, [Foxwood LLC] shall pay [the Respondent] a partnership fee, to be paid out from the office account … only, as and when instructed by [the Respondent]. The amount of partnership fee shall be determined solely by [the Respondent].” 75. Clause 3.1 of the Agreement states that the Respondent would pay Foxwood LLC a monthly Administrative Fee of S$1,500 for each fee-earner in the Dispute Resolution Division. Clause 3.2 of the Agreement obliged the Respondent to pay Foxwood LLC a refundable Deposit calculated by multiplying the gross monthly salary of each employee of the Dispute Resolution Division by that employee’s notice period in months. In consideration for the payment of the Administrative Fee and the Deposit, Foxwood LLC was required pursuant to Clause 3.4 of the Agreement to provide the Respondent and the Dispute Resolution Division with the following services: “(a) Costs and use of the following software: (i) Microsoft 365; (ii) Lawnet (two users); (iii) E-litigation; (iv) Waveapp; (v) Clio; and (vi) Nuance Power PDF. 23 76. (b) pay-roll and Human Resource services; (c) Stationaries, such as name cards, pens and papers; (d) Client onboarding and invoicing; (e) Marketing efforts through digital and traditional means; (f) General administrative work in relation to application for practicing certification, professional indemnity insurance, employee benefit.” The picture that emerges is that the Respondent was clearly responsible for the management of Foxwood LLC’s dispute resolution department even if he had not been formally appointed as a director of the firm. As part of this role, he made the hiring decisions concerning lawyers and trainees for the dispute resolution department. 77. This is apparent from the process by which both Mr Lim and Ms Sunil joined Foxwood LLC as trainees in the dispute resolution department. Mr Lim’s evidence was that he sent his application for a training contract directly to the Respondent and was eventually interviewed by the Respondent and the offer to join the firm as a trainee was made by way of a letter on the firm’s letterhead signed by the Respondent as “Head of Dispute Resolution”.59 Ms Sunil went through the same process as well.60 Both Mr Lim and Ms Sunil dealt with the Respondent. There is no evidence that Mr Goh or anyone else at Foxwood other than the Respondent made the final decision on whether to offer them training contracts. 78. We agree with the Law Society that we must look at the substance and not the form of the Respondent’s role at Foxwood LLC in determining whether he was part of its management. Similarly, whether a solicitor is part of a firm’s management for the 59 60 Mr Lim’s AEIC, [9] to [14]. Ms Sunil’s AEIC, [10] to [21]. 24 purposes of Rule 36 of the PCR cannot be determined by simply asking whether he held the title of director or partner. One must look at the actual role he performed in the running of the firm. 79. In this case, it is clear to us that the Respondent was part of the firm’s management insofar as he called the shots in the dispute resolution department. As we described above, it was the Respondent who made the decision to offer Mr Lim and Ms Sunil training contracts with the firm and it was he who put himself forward as their supervising solicitor. It is not the Respondent’s case that Mr Goh or anyone else at Foxwood LLC had made those decisions, and there is certainly no evidence that that was the case. 80. The Respondent argues that the Agreement does not “give the Respondent control to Goh’s exclusion”61 and that the Agreement did not state that Goh had no control over the dispute resolution department. He contends that Mr Goh, as the sole director of Foxwood LLC, always had the power to veto any decisions the Respondent made in relation to the dispute resolution department. 81. This may have been the case in theory, but the Respondent did not adduce any evidence of specific occasions when Mr Goh had done so. All the evidence before us points to the Respondent having been given a free hand to manage the dispute resolution department in accordance with the arrangement set out in the Agreement. It bears noting that the Respondent accepts that ensuring that practice trainees are properly supervised is a shared responsibility by the management of the firm, and he admits that he must take responsibility for his part.62 61 62 RCS [19]. RCS [47]. 25 82. We therefore find that the Respondent was part of the management of Foxwood LLC at the material time and that Rule 36(2)(a)(ii) of the PCR was breached as pleaded in the First Charge and the First Alternative Charge. 83. We note that Rule 36 places the responsibility for providing supervised training on the management of the law firm. While we have found that the Respondent was part of the management of Foxwood LLC, he was certainly not the only person in management. Mr Goh, as the sole director of the firm, was certainly part of management as well. However, neither Mr Goh nor any other individuals are before us and we therefore make no comment on their respective roles or potential culpability. Has Section 83(2)(b) of the Act been satisfied? 84. Section 83(2)(b) of the Act provides (among other things) that due cause may be shown by proof that an advocate and solicitor has been guilty of such a breach of “any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of [the] Act”63 as amounts to improper conduct or practice as an advocate and solicitor. 85. Given the seriousness of the breach (as we explained in dealing with the Second and Alternative Second Charges above), we find that the Respondent’s conduct did amount to improper conduct or practice as an advocate and solicitor and that the First Charge has therefore been made out. 63 Section 83(2)(b)(i) of the Act. 26 Has Section 83(2)h) of the Act been satisfied? 86. The Alternative First Charge asserts a breach of Section 83(2)(h) of the Act, which relates to conduct that amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 87. Applying the test in Ezekiel Peter, we find that the Respondent’s conduct as set out in the Alternative Second Charge amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. We repeat our remarks at paragraphs 48 to 52 above in relation to the Second and Alternative Second Charges in this regard. The Alternative Second Charge has therefore been made out. 88. The failure to ensure that Mr Lim and Ms Sunil were supervised during their respective training contracts by a solicitor who was sufficiently qualified is a serious breach. We find that cause of sufficient gravity for disciplinary action exists in respect of both the First and Alternative First Charges. The Third Charge 89. At the hearing for oral closing submissions on 17 December 2021, Counsel for the Law Society highlighted that the Law Society was considering making amendments to the Third Charge. Subsequently, on 31 December 2021, we allowed an amendment to the Third Charge pursuant to an agreement between the parties. The amended Third Charge alleges: 64 64 Law Society’s Further Submissions (“LCFS”) [7]. 27 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore have behaved in a manner inconsistent with the public interest by being the supervising solicitor during the practice training periods of [Mr Lim] and [Ms Sunil], who were practice trainees under separate practice training contracts contracts with Foxwood LLC, when you did not have in force a practicing certificate of a period of not less than 5 out of the 7 years immediately preceding the date of the commencement of your supervision of Mr Lim and [Ms Sunil] as required under Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011 …, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 90. The crux of the charge is that advocates and solicitors have “a duty to behave in a manner consistent with the public interest” 65 and the Respondent had breached this duty by purporting to act as the supervising solicitor for Mr Lim and Ms Sunil when he was not qualified to do so. 91. The Respondent does not appear to dispute the existence of such a duty. His argument instead is that “the public interest is not engaged every time a lawyer makes a mistake” 66 and that the conduct complained of in the Third Charge did not amount to a breach of that duty. 92. The Respondent’s arguments in response to this Charge focus on his claim that he had not held himself out to be a supervising solicitor in an advertisement published on the Law Society’s practice training website on 18 November 2019 (the “Advertisement”).67 We are prepared to accept the Respondent’s argument on this issue. However, this finding does not assist him. 65 Respondent’s Further Written Submissions (“RFWS”) [3]. 66 SOC page 15. 67 RFWS [5] to [15]. 28 93. The Respondent’s focus on addressing the Advertisement appears to arise from the pleaded particulars to the charge, the majority of which assert that the breach arose because the Respondent held himself out to be a supervising solicitor in the Advertisement. However, the Respondent has not addressed the body of the charge, which asserts that he had purported to act as supervising solicitor for Mr Lim and Ms Sunil while not qualified to do so – something the Respondent admits. 94. As we explained above in dealing with the Second Charge and Alternative Second Charge, the Respondent’s conduct imperiled the framework put in place to ensure the quality of advocates and solicitors admitted to the Bar. Such conduct clearly offends the public interest. 95. We therefore find that the Third Charge has also been made out and that cause of sufficient gravity for disciplinary action exists in respect of this charge. The Fourth Charge and Alternative Fourth Charge 96. The Fourth Charge and Alternative Fourth Charge both relate to the Respondent having allegedly demanded that Ms Sunil pay a sum of $2,000 pursuant to her practice training contract with Foxwood LLC. 97. The Fourth Charge alleges: 68 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 …, by taking unfair advantage of [Ms Sunil] by demanding that she pay Foxwood LLC the sum of $2,000 when this sum was not recoverable by due process of law, which amounts to misconduct unbefitting an 68 SOC page 17. 29 advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 98. The Fourth Charge asserts a breach of Rule 8(3)(a) of the PCR, which requires a legal practitioner to “not take unfair advantage of any person”. The Law Society alleges that the Respondent took unfair advantage of Ms Sunil by demanding that she pay Foxwood LLC a sum of $2,000 that was “not recoverable by due process of law”. 99. The Alternative Fourth Charge reads: “That you, Clarence Lun Yaodaong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules 2015 by acting in a manner contrary to your position as a member of an honourable profession by demanding that [Ms Ann] pay Foxwood LLC the sum of $2,000 under the terms of a practice training contract under which you agreed to be [Ms Sunil’s] supervising solicitor during her practice training period when you knew or ought to have known that you did not meet the requirements to be [Ms Sunil’s] supervising solicitor under rule 18(1)(b) of the Legal Profession (Admission) Rules … as of the commencement of your supervision of [Ms Sunil] during her practice training period under the terms of that practice training contract, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 100. The Alternative Fourth Charge asserts a breach of Rule 8(3)(b) of the PCR, which requires a legal practitioner to “not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to the legal practitioner’s position as a member of an honourable profession”. The Law Society alleges that the Respondent acted in a manner contrary to his position as a member of an honourable profession by allegedly demanding that Ms Sunil make the $2,000 payment. 30 Did the Respondent demand payment from Ms Sunil? 101. The threshold question therefore is whether the Respondent had in fact demanded that Ms Sunil pay a sum of $2,000 to Foxwood LLC. 102. Ms Sunil had signed a practice training contract with Foxwood LLC. The terms of this contract were set out in the letter of offer dated 11 October 2019 which the Respondent signed on behalf of Foxwood LLC and which Ms Sunil signed and accepted on 12 October 2019.69 Clause 2 of the contract stated her gross monthly salary as $2,000 and Clause 3 permitted either party to terminate the contract “with 1 month prior notice in writing”. 70 103. Ms Sunil officially started her employment with Foxwood LLC on 2 January 2020.71 On 4 January 2020, she decided to leave Foxwood LLC immediately for personal reasons that had nothing to do with the Respondent. 72 She informed the Respondent of this over a telephone conversation on 5 January 2020 – the Respondent being overseas at that time. Ms Sunil’s evidence was that during this conversation, the Respondent asked if she could serve the entire one-month notice period set out in her training contract. Ms Sunil said she told the Respondent that she wanted to leave immediately,73 and that the Respondent then told her that she would have to pay “1 month’s salary in lieu of notice which would be $2,000.00 … within seven days of [her] last day at Foxwood LLC. 74 69 70 71 72 73 74 AB 33 & 34. AB 33. Affidavit of Evidence-in-Chief of Ms Trinisha Ann Sunil (“Ms Sunil’s AEIC”) [30]. Ms Sunil’s AEIC [33]. Ms Sunil’s AEIC [35(c)]. Ms Sunil’s AEIC [35(e)]. 31 104. Ms Sunil said that she understood from her conversation with the Respondent that “she would have to pay damages in lieu of notice if [she] could not serve the 1 month notice period”.75 She explained that while she “had doubts on whether [she] was contractually obliged to pay this money”, she believed the Respondent must be right as “he was a lawyer, a partner at Foxwood LLC and [her boss]”. 76 105. Later that day, after having discussed the matter with her family, Ms Sunil sent the Respondent a WhatsApp message stating that she had “decided that it would be best if [she] terminate [her] contract here and pay the full month of salary in lieu of notice”.77 She was subsequently informed by one of the secretarial staff at Foxwood LLC that the amount she had to transfer to Foxwood was $1,793.13,78 which she believed was derived by deducting from $2,000 a sum of $86.95 for each of her three workings days at Foxwood LLC.79 106. On 9 January 2020, the Respondent sent her a WhatsApp message asking her to “please kindly make payment towards [her] notice period to clear up the remaining issue on [her] employment”.80 She responded to say that would only be able to do so later in the week but would do so with the seven-day period he had mentioned.81 Ms Sunil eventually paid the sum of $1,793.13 on 11 January 2020.82 75 76 77 78 79 80 81 82 Ms Sunil’s AEIC [35(f)]. Ms Sunil’s AEIC [37]. Ms Sunil’s AEIC [39]; AB 48. Ms Sunil’s AEIC [47]. Ms Sunil’s AEIC [48]. AB 237. Ms Sunil’s AEIC [52]; AB 50. Ms Sunil’s AEIC [57]. 32 107. The Respondent denies having made any demands. He says that given Ms Sunil’s desire to leave immediately, he had merely given her the option of doing so by paying a month’s salary in lieu of notice83 and she had voluntarily accepted this option. 84 108. It is therefore common ground that the Respondent had informed Ms Sunil that she would have to pay one month’s salary in lieu of notice if she wanted to terminate her employment immediately. Whether this is characterized as a demand or merely the provision of an option is, in our view, irrelevant. Did the Respondent take unfair advantage of Ms Sunil? 109. The material question insofar as the Fourth Charge is concerned is whether the Respondent can be said to have taken unfair advantage of Ms Sunil by requiring her to pay one month’s salary in lieu of notice to immediately terminate her employment with Foxwood LLC. 110. The Respondent denied having taken advantage of Ms Sunil. He repeated his position that all he had done was to offer her the option of immediately terminating her employment with Foxwood LLC by paying one month’s salary in lieu of notice. 111. The Law Society asserts that the Respondent took unfair advantage of Ms Sunil by “demanding the sum of $2,000 from her when this sum was not recoverable by due process of law”.85 During oral closing submissions, Counsel for the Law Society clarified that what was meant by the $2,000 not being “recoverable by due process of law” was that there was no enforceable contract because the fact that none of the lawyers at 83 84 85 RCS [94]. Respondent’s AEIC [31]. LSCS [103]. 33 Foxwood LLC were qualified to act as supervising solicitors for practice trainees meant that the training contract could not be performed and was therefore a nullity.86 112. To show that the Respondent had taken unfair advantage of Ms Sunil by demanding payment of the $2,000, the Law Society must establish that he knew at the material time that the training contract was void. That in turn would require knowledge that none of the directors of Foxwood LLC were able to act as Ms Sunil’s supervising solicitor. The Law Society argued that it had cleared this threshold. 113. First, the Law Society relied on Selena Chiong for the proposition that each Advocate and Solicitor is taken to know of the relevant Rules governing his practice, and argued that the Respondent therefore must be taken to have known that he was not qualified to act as Ms Sunil’s supervising solicitor. 114. We accept the principles set out in Selena Chiong – an Advocate and Solicitor cannot rely on any alleged ignorance of the relevant regulations to avoid liability. However, we do not think that fundamental principle is directly applicable for the purposes of this charge. For the purposes of showing an unfair advantage, the Law Society must show that the Respondent had actual (as opposed to imputed) knowledge of his lack of qualifications to be Ms Sunil supervising solicitor and that the training contract was therefore a nullity. 115. The evidence in this case does not go that far, certainly not enough to make the point beyond a reasonable doubt. 86 We have explained above why we cannot say with Transcript 17 Dec 2021 19(8) to 20(2). 34 sufficient certainty that the Respondent’s conversations with Mr Tan and Mr Giam were sufficient to bring this fact to his attention.87 116. Second, the Law Society points out that even if we accept the Respondent’s evidence that he only realized that he was not qualified on 6 January 2020, it would mean that the Respondent had the requisite knowledge when he repeated his demand for the $2,000 in his 9 January 2020 WhatsApp message to Ms Sunil. 117. The Respondent says that the WhatsApp message was merely a reminder and the fact that the training contract “does not hold and therefore there is no basis to … make a reminder” was not operative on his mind at that time.88 Based on the totality of the evidence, we cannot say with the requisite certainty that the Respondent’s version cannot be believed. 118. Third, the Law Society referred to and relied on the case of Law Society of Singapore v Ong Teck Ghee89 for the principle that “an advocate and solicitor has to be scrupulously beyond reproach in terms of his integrity, honesty and fairness”.90 119. While we accept this statement of principle, we do not see how the case assists the Law Society. The facts of Ong Teck Ghee bear no resemblance to the present case, the respondent in that case having entered into prohibited borrowing transactions by entering into loan agreements with his client. 120. We therefore find that the Fourth Charge has not been made out. 87 88 89 90 See paragraphs __ to __ above. Transcript 28 Oct 2021 127(16) to 127(25). [2014] SGDT 4. LSCS [89]. 35 Did the Respondent act in a manner contrary to his position as a member of an honourable profession? 121. For the Alternative Fourth Charge, the material question is whether the Respondent had acted in a manner contrary to his position as a member of an honourable profession in requiring Ms Sunil to pay one month’s salary in lieu of notice to immediately terminate her employment with Foxwood LLC. 122. For the reasons set out above in relation to the Fourth Charge, we accept the Respondent’s explanation that he had merely provided Ms Sunil with an option and had not sought to take advantage of her. We therefore find that the Alternative Fourth Charge is also not made out. The Fifth Charge and Alternative Fifth Charge 123. The Fifth Charge and Alternative Fifth Charge stems from the allegation that the Respondent represented to Mr Lim that he would qualify to serve as Mr Lim’s supervising solicitor by May 2020 (the “Alleged Representation”). Both charges assert that the making of the Alleged Representation amounted to a breach of the requirement under Rule 8(3)(b) of the Rules that a legal practitioner “not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to the legal practitioner’s position as a member of an honourable profession”. 124. The Fifth Charge states: 91 91 SOC page 21. 36 “That you, Clarence Lun Yaodaong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules 2015 …, by acting in a manner which is deceitful by representing to [Mr Lim], a practice trainee of Foxwood LLC, that by May 2020 you would meet the requirements under Rule 18(1) of the Legal Profession (Admissions) Rules 2011 … to be Mr Lim’s supervising solicitor during his practice training period when you knew this to be false, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 125. The Fifth Charge therefore asserts that by making the Alleged Representation, the Respondent had breached Rule 8(3)(b) of the Rules by acting in a manner that was deceitful, and that this breach amounted to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 126. The Alternative Fifth Charge states: 92 “That you, Clarence Lun Yaodaong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules 2015 … by acting towards [Mr Lim], a practice trainee of Foxwood LLC, in a manner which is contrary to your position as a member of an honourable profession by representing to Mr Lim that by May 2020 you would meet the requirements under Rule 18(1) of the Legal Profession (Admissions) Rules 2011 … to be Mr Lim’s supervising solicitor during his practice training period when you knew this to be false, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 127. The Alternative Fifth Charge therefore asserts that by making the Alleged Representation, the Respondent had breached Rule 8(3)(b) of the Rules by acting in a manner contrary to his position as a member of an honourable profession, and that this 92 SOC page 25. 37 breach amounted to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. Did the Respondent make the Alleged Representation? 128. The threshold question therefore is whether the Respondent had in fact made the Alleged Representation. 129. Mr Lim’s evidence on this issue was as follows:93 “[The Respondent] told me that he would meet the requirements to be a supervising solicitor by May 2020. [The Respondent] mentioned in passing that he would have to ‘check’, but it was unclear what exactly he felt needed to ‘check’. He never said that he would have to check to see if he would qualify by May 2020. I recall with certainty that he did inform me that he would qualify by May 2020. The impression that [the Respondent] gave me was that he would qualify in May 2020 even though he may have been uncertain as to the actual date of qualification.” 130. This evidence is consistent with what Mr Lim had stated on two earlier occasions. The first was in an email dated 16 January 2020 to Professor Eleanor Wong from the NUS Law Faculty, where Mr Lim stated that the Respondent had told him on 14 January 2020 that “he will qualify as a supervising solicitor in May 2020”.94 131. The second occasion was in an affidavit dated 4 August 2020 that Mr Lim had deposed in support of his application to abridge time for the filing of documents for admission to the Bar, where he stated that “[the Respondent] further informed [him] that he would only qualify as an supervising solicitor in May 2020.” 95 93 Affidavit of Evidence-in-Chief of Mr Lim Teng Jie (“Mr Lim’s AEIC”) [37(a)]. 94 AB 249. 95 AB 88, at [9]. 38 132. The Respondent’s evidence is that after he discovered that he was not qualified to act as Mr Lim’s supervising solicitor, he had informed Mr Lim of this fact and had given him the following options for moving forward. One of those options was to continue with Foxwood LLC as a paralegal until May 2020, commence practice training with Foxwood LLC in May 2020 and be called in November 2020. His evidence in this regard was as follows:96 “[One option was to] offer Mr Lim the position of a paralegal and if I was to qualify as a supervising solicitor in May 2020, to commence practice training with Foxwood LLC and to be called to the [Bar] 6 months thereafter. I informed Mr Lim that I would need to check with the Law Society and SILE on whether I would qualify as a supervising solicitor in May 2020. That is because I did not have the exact dates for which I was holding a practicing certificate and intended to check on those matters, if this was proposal was to be advanced. I recall that I had also mentioned June or July 2020 depending on how the SILE/Law Society would respond to me. As I did not want Mr Lim to suffer financially from the mistake, I also mentioned that if Mr Lim went with this proposal and proceed to become a paralegal, I would ensure that he would not be financially worse off compared with his peers in major firms by paying him the big firm rate, which I understood to be $5,600 per month.” 133. In short, the Respondent admits having mentioned being qualified in May 2020 but says he qualified that by saying he would have to check with the Law Society and SILE. 134. Mr Lim struck us as an earnest and truthful witness, and we have no doubt that Mr Lim genuinely believed that the Respondent had made the Alleged Representation to him on 14 January 2020. His contemporaneous email to Professor Wong supports his evidence to the Tribunal and we see no reason why he would say that the Respondent had made the Alleged Representation if he did not believe it had been made. The only 96 Respondent’s AEIC [38(d)] and [38(e)]. 39 question therefore is whether the Respondent had qualified the Alleged Representation as he claims to have done. 135. On this issue, we note that Mr Lim accepts that the Respondent had mentioned that he would have to ‘check’ and says that it was unclear exactly what the Respondent felt needed to be checked. The Respondent maintains that he meant that he would have to check with the Law Society and SILE. It is therefore quite possible on the evidence before us that there had been a degree of miscommunication or misunderstanding between Mr Lim and the Respondent as to whether the Respondent had given an unqualified representation that he would be qualified to act as supervising solicitor from May 2020. 136. In the circumstances, we are unable to conclude with sufficient certainty that the Respondent had in fact made the Alleged Representation. We therefore find that the Fifth Charge and the Alternative Fifth Charge are not made out. Conclusion 137. We therefore find and determine pursuant to Section 93(1)(c) of the Act that cause of sufficient gravity for disciplinary action exists: (a) under Section 83(2)(b) of the Act in respect of the First Charge; (b) under Section 83(2)(j) of the Act in respect of the Second Charge; and (c) under Section 83(2)(h) of the Act in respect of the Alternative First Charge, the Alternative Second Charge and the Third Charge. 40 138. We also find and determine that the Fourth Charge, the Alternative Fourth Charge, the Fifth Charge and the Alternative Fifth Charge were not made out. 139. We order, pursuant to Section 93(2) of the Act, that the Respondent pays the Law Society’s costs in relation to these proceedings, such costs to be taxed by the Registrar if not agreed. th 22nd Dated this 17 day of March 2022 Siraj Omar, S.C. President Tan Jee Ming Advocate 41 ",2023-03-08T04:00:32+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2023/,"In the Matter of Clarence Lun Yaodong (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2023/",5315e08823d5b73054ee764151cf88b78a774fa3,"[""title"",""pdf-link"",""pdf-content"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,5,5,1,1049,"In the Matter of CNH (Respondent), Advocate & Solicitor","In the Matter of CNH (Respondent), Advocate & Solicitor These proceedings arose out of information referred by the Attorney-General to the Law Society on the Respondent’s conduct. The Respondent pleaded guilty to, and was duly convicted of the following: Section 509 of the Penal Code (Cap 224, 2008 Rev Ed) (PC) for intending to insult the modesty of a 23-year-old woman (Victim), and intruding upon her privacy, by using his handphone to take photographs of her chest and brassiere without her consent; and Section 509 of the PC for intending to insult the modesty of the Victim, and intruding upon her privacy, by using his handphone to take photographs of her panties without her consent. The Respondent had also consented to the following to be taken into consideration for the purposes of sentencing: Section 509 of the PC for intending to insult the modesty of the Victim, and intruding upon her privacy, by using his handphone to take photographs of her panties without her consent; and Section 354(1) of the PC for using criminal force on the Victim, by pressing his thigh against her upper arm, knowing it is likely that he would thereby outrage her modesty. The Respondent was sentenced to a total of four weeks’ imprisonment by the State Courts. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Ms Kuah Boon Theng SC and Mr Philip Ling as DT member. Two charges (Charges) were preferred against the Respondent: 1st Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (LPA) in that the Respondent had intentionally used his handphone to take photographs of the chest and brasserie of the Victim, who was his colleague in the law firm, without her consent. 2nd Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA in that the Respondent had intentionally used his handphone to take photographs of the panties of the Victim, who was his colleague in the law firm, without her consent, and pressed his thigh against her upper arm, knowing it is likely that he would outrage her modesty. Findings and Determination of the DT The Respondent was unrepresented, and failed to attend the DT Hearing, despite due notice being given to him. The DT proceeded to make a determination in the Respondent’s absence pursuant to Rule 16 of the Legal Profession (Disciplinary Tribunal) Rules (Rules). The DT noted that the Charges preferred against the Respondent were premised on his conduct culminating in him being charged and convicted of the criminal offences in the State Courts. As the Respondent pleaded guilty to, and has been convicted of his criminal charges, it was therefore taken that he had admitted to all the facts underlying and forming the basis of the criminal charges. With reference to section 45A of the Evidence Act (Cap 97, 1997 Rev Ed) as well as Rule 23 of the Rules, the DT was of the view that it was entitled to, and accepted as conclusive, the facts underlying and forming the basis of the criminal charges. The DT found that the Respondent’s said conduct, taken as a whole, fell below the required standards of integrity and probity, and had brought grave dishonour to the profession. The DT found that the Charges were made out, and was of the view that there was cause of sufficient gravity for disciplinary action under section 83 of the LPA, and recommended for the matter to be referred to the Court of Three Judges (C3J). Council accepted the findings and recommendations of the DT. The C3J subsequently struck the Respondent off the Roll.* *The decision of the C3J can be found in Law Society of Singapore v CNH [2022] SGHC 114. ",,,2023-02-01T02:00:22+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2023/,"In the Matter of CNH (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2023/",ce92c3eb59011857291835e68d286083bc6c5abb,"[""title"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,6,6,1,1049,"In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor","In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Jain Alka @ Alka Salecha (the Complainant). The Complainant and her husband, one Mr Padam Kumar Jawerilal Salecha, were shareholders and directors of Swina International Pte Ltd (Swina) at all material times. Swina engaged the Respondent to negotiate with Swina’s creditor banks in relation to outstanding loans of around S$16 million. The Complainant and her husband also engaged the Respondent also attend to the bankruptcy proceedings taken out against them on account they being guarantors of the loans taken out by Swina. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Roderick E Martin SC and Mdm Tan Gee Tuan as DT member. One charge and two alternative charges were preferred against the Respondent: Charges 1st Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act 1966 (LPA) in that the Respondent failed to provide advice to his clients, in relation to the legal proceedings commenced against them, in breach of Rule 5(2)(h) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). 1st Alternative Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA in that the Respondent failed to act with reasonable diligence and competence in the provision of legal services to his clients by failing to advise his clients in relation to the legal proceedings that had been commenced against them, in breach of Rule 5(2)(c) of the PCR. 2nd Alternative Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA in that the Respondent failed to use all legal means to advance his clients’ interests to the extent that he may reasonably be expected to do so, by failing to advise his clients in relation to the legal proceedings that had been commenced against them, in breach of Rule 5(2)(j) of the PCR. Findings and Determination of the DT, Council’s Sanctions The DT found that the main charge, i.e. the 1st Charge, was made out on the facts beyond a reasonable doubt. The DT found that the Respondent did not advise his clients on the options available to the client in response to bankruptcy and winding up applications, i.e. the prospect of voluntary arrangements, schemes of arrangements and/or judicial managements. Further, the Respondent failed to advise his clients on the issue of balance sheet solvency. The DT noted that Swina was balance sheet solvent at the material time, and this fact could have been relied on to either persuade creditor banks to grant more time for repayment, or at the very least, to seek an adjournment from the Court. The Respondent did not do that or advise the clients on the same. Because of the Respondent’s omissions, his clients did not consider making a revised repayment proposal to Maybank to avoid the bankruptcy and winding up orders. In addition, the DT found that the Respondent failed to advise his clients on their options moving forward after bankruptcy and winding up orders were made. The DT concluded that no cause of sufficient gravity existed for a referral to the Court of Three Judges, cognisant of the fact that there was no element of dishonesty on the Respondent’s part, and that he was a candid witness. The DT was of the view that a financial penalty was appropriate to address the Respondent’s misconduct. There was no order as to costs as the Complainant’s counsel had taken on the case on a pro bono basis. Council accepted the findings of the DT and imposed a financial penalty of S$10,000 on the Respondent. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2023/01/dtr_jan_2023-compressed.pdf,"17th BACKGROUND FACTS. ‘The Complainant in these disciplinary proceedings is one Ms Jain Alka @ Alka Salecha (the “Complainant. The Complainant and her husband, Mr Padam Kumar Jawerlal Salecha, were at all material times the shareholders and directors of Swina International Pte Ltd ('Swina’), ‘Tne Respondent is Mr Sarindar Singh, an Advocate and Solicitorof the Supreme Court of Singapore, of 22 years’ standing (the “Respondent’). At all material times, the Respondent was the sole proprietor of Mis Singh & Co, ‘The Respondent was engaged by Swina to negotiate with Swina’s creditor banks In relation to outstanding loans of around SGD 16 million. The Respondent was also engaged by the Complainant and her husband, being personal guarantors of the loans taken out by Swina, for the same purpose The Respondent wrote to the banks proposing repayment plans, but those proposals were rejected Consequently, on 11 December 2017, Swina was served by Maybank with the winding up papers in HCICWU 247/2017 at its office and on 12 December 2017, the Complainant and her husband were personally served with the bankruptey papers in HC/B 2785/2017 and HC/B 2783/2017 respectively at their residence. The bankruptcy and winding up applications were heard and granted on 11 January 2018 and 12 January 2018 respectively (On 9 May 2019, the Complainant lodged a complaint against the Respondent, alleging that the Respondent had breached his duties under the Legal Profession (Professional Conduct) Rules by- (2) falling o act with honesty, competence and dligence; (b) disclosing information without the Claimant's instructions; and (c) grossly overcharging for the work done"" 9. The complaint was referred to an IC, which took the unanimous view that all three heads of complaint disclosed no necessity for a formal investigation by @ Disciplinary Tribunal? 10, Boing dissatisfied with the IC's decision that there was no prima facie case for referral tothe DT, the Complainant took out an application vide HC/OS 41/2024 (COS 41°) for an order to compel the Law Society to rofer her complaint to a DT. The parties to OS 41 were the Complainant, as the applicant, and the Law Society, as the respondent. At the hearing, the learned Justice Ang Cheng Hock (the “Judge"") adopted the burden of proof applicable in an IC.? Le. whether there, ‘was a prima facie case for referral. In other words, the learned Judge placed hhimsotf inthe position of the IC and. applying tho burden of proof applicable to the IC, determined whether or not the IC should have referred the complaint to a oT 11, The leamed Judge held as follows: “1, Alter consideration of the affidavits and the submissions, | am of the view that there is a necessity for a formal investigation by @ i 7 appticant's Pte Ltdl (""Swina’) Internationa 2. That being the caso, | find that there is a prima facie basis for investigation to be carried out into Mr Sit ‘AB 248 0250, 2AB 434 » See Notes of Hearing (22 Apri 202%) at paragraph [2], AB 443 to 4 Inhis {sie] regard. | find that the Council of the Law Society had erred ‘in not considering that the evidence disclosed a prime facie case of ‘professional misconduct that is of sufficient gravity as to warrant 2 formal investigation by a disciplinary tribunal 3 Onthe evidence before the Inquiry Committee (IC), did not agree that the other complaints raised by the Applicant in relation to Mr ‘Singh's alleged professional misconduct are either made out on a ‘prima facie basis, or were of sufficient gravity as to warrant a format investigation by a disciplinary tribunal. As such, do not think th Counci of the Law Society erred in determining that the other matters did not require a format investigation by a discipinary tribunal. 7. For the above reasons, { will thus grant OS 41/2021 in part. | hereby direct the Respondent to apply tothe Chiot Justice for the appointment of a disciplinary tribunal in respect of the following charge against Mr Singh ~ breach of his duty of honesty, competence and diligence under Rule 5 of the Legal Profession rofessional Conduct) Rules 2015 by failing to advis Applicant in relation to the legal proceedings that had been commenced against her, her husband and Swina, and hence, that Mr Singh is guity of misconduct unbefiting an advocate and solicitor as an officer of the Supreme Court under s 83(2)(h) of the Lega! Profession Act” [emphasis added in bold and underine} 12. Pausing here, it ought to be stated that the burden of proof in the IC and before the DT is diferent. At the IC, the IC determines whether. on the material supplied to the IC, there exists a prima facie case for referral to a DT. Atthe DT. the burden of proof notches up to a more “onerous” burden, that is, that the Complainant's ‘case hasto be proven beyond a reasonable doubt * 13. Italso ought to be stated that of the grounds relied on by the Complainant in OS 41, only one ground was successful, this being that the Respondent failed to provide advice in relation to the legal proceedings in HC/B 2788/2017, HCIB 2783/2017 and HCICWU 247/2017 (the “Legal Proceedings’). I THE CHARGE 14, Its arising from this one ground that the following charge was preferred against the Respondent in the DT. It had two alteratives Charge “You, Sarindar Singh, an Advocate and Sotto ofthe Supreme Court of Singapore, are charged that you are guilt of misconduct unbefting an advocate and solictor as an officer ofthe Supreme Court or as a ‘member of an honourable profession within the meening of section 83(2)(h) of the Legal Profession Act, to wit, by breaching Rule 5(2)(h) ofthe Legal Profession (Professional Conduct) Rules 2015, n that in the course of your engagement as Jain Alka @ Alka Satocha, Padam Kumar Jawonial Salecha and Swina Intematonal Pte Ltd's lawyer, you had failed to provide advice to your clients, Jain Alka @ Alka Salecha, Padem Kumar Jawerilal Salecha and Swina International Pte Lt, inproceedings relation to the legal that hod eon commenced against them in HC/B 2785/2017, HC/B 2783/2017 and HC/CWU 247/2017 respectively. [emphasis added in bold and undertine] “You, Sarindar Singhan Advocate and Soictor ofthe Supreme Court of Singapore, are charged that you are quity of misconduct unbetitting “Law Socay of Singapare vAhmad Knais tn Abt Ghani [2006] 4 SLR(R) 208 at 6) an advocate and solicitor as an officer of the Supreme Court or as a ‘member of an honourable profession within the moaning of section £89(2}() ofthe Legal Profession Act, to wit, by breaching Rule 5(2Vc} of the Legal Profession (Professional Conduct) Rules 2015, n that in the course of your engagement as Jain Alka @ Alka Safecho, Padom Kumar Jawonlal Salocha and Swina International Pte Ltd's lawyer, vou had failed to act with reasonable diligence and competence ‘in vour provision of legal services to your clients, Jain Alka @ ‘Aika Salecha, Padam Kumar Jawerilal Salecha and Swina International Pte Ltd, by failing to advise your clients in relation {0 the legal proceedings that had been commenced against them in HC/B 2785/2047, HC/B 27832017 and HC/CWU 247/2017 respectively {emphasis added in bold and underline} Second Alternative Charge “You, Sarindar Singh, an Advocate and Solicitor of the Supreme Court of Singaporo, are charged that you are guilty of misconduct unbefiting an advocate and solicitor as an officer of the Supreme Court or as a momber of an honourable profession within the meaning of section {83(2)(h) of the Legal Profession Act, to wit, by breaching Rule 5(2)() of the Lega! Profession (Professional Conduct) Rules 2015, in that i the course of your engagement as Jain Aika @ Alka Salecha, Padam Kumar Jaweriial Salecha and Swina International te Ltd's lawyer, ‘You had failed to use all legal means to advance your clients’ Jain Alka @ Alka Salecha, Padam Kumar Jawerilal Salecha and ‘Swina International Pte Ltd, interests to the extent that you may in-relation to the legal proceedings that had been commenced against them in HC/B 2785/2017, HC/B 2783/2017 and HC/CWU 1247/2017 respectively. [emphasis added in bold and underline] ‘THE PARTIES’ POSITIONS. a. The Complainant's Account 15. The Complainants account is that over the course of several meetings from 12 December 2017 to 11 January 2018, the Respondent told her and her husband ‘not to be concerned with the Legal Proceedings, 2s it would be a matter of formality to adjourn the hearings as negotiations with the respective credtor banks were underway * In this regard, the Respondent assured the Complainant that ne would attend the hearings on their behall to inform the Court that a proposal had been made tothe creditor banks, and that the hearings would be adjourned. The Respondent also stated that it would take about 6 10 9 months forthe Legal Proceedings to be determined due tothe adjournments occasioned by the banks needina time to consider the proposals.” 16. On 11 January 2018, the Respondent informed the Complainant and her husband via WhatsApp that he was “in Court now’, then subsequently callod the ‘Complainant and her husband to inform them that the bankruptcy orders had been made.* The Complainant was confused as this was contrary to what had been discussed in the previous meetings with the Respondent. In response, the Respondent stated that the orders had been made as Swina, the Complainant ‘and her husband had no money to repay the banks The Complainant later earned that the Respondent did not attend the hearing, but Maybank’s solicitors had instead mentioned on his behalf"" 17. On 12 January 2018, the Respondent informed the Complainant and hor ‘husband via WhatsApp that the winding up application against Swina had been granted. ** The Complainant was shocked and demanded an explanation as to why the Respondent had not sought an adjournment, but the Respondent was ComplainaAEC nts=:3 |73)[73] (60] ano (26). AEC Complainant' ©Comp s 3 (74) 2 lainant'AEC s Complainant' AEICs3 [8an7](83) a s(89) AE(C 3 (88t' Complain "" Complanants AEC an at [92 * Complanants AEC at 93) rot forthcoming with a response.""? The Complainant later leamed that the Respondent did not represent Swina at the hearing.” b. The Respondent's Account 18. The Respondent's account is that he repeatedly advised the Complainant and her husband that they needed to revise their proposals tothe creditor banks, and that this was the best advice that he could give in the circumstances. As what they had put forward was inadequate given the amounts that were owing, they needed to devise new repayment plans that were acceptable to the creditor banks."" 19. The Respondent had also taken the positon that it would be possible to adjoum the bankruptcy hearings as Maybank had not yet rejected the existing proposal. ‘This position changed on 11 January 2018, the day of the bankruptey hearings, ‘when the Respondent was informed by Maybank’ solicitors before the hearings that his clints' proposals were to be rejected. In the circumstances, he found himseif without any grounds to justify an adjournment and accepted Maybank’s solicitors offer to mention on his behalt""® He accordingly advised the ‘Complainant over the telephone that there were no grounds for any adjournment cor resistance to the bankruptcy orders being made.""” IV. FINDINGS OF FACT 20. The Tribunal found that the main charge was made out on the facts beyond a reasonable doubt. In other words, the Respondent had failed to give advice to his clients on the Legal Proceedings that wore commenced against his clients ‘Complanant’s AEIC atat 95) >‘Responders Comptanant’s AEIC 92) AEIC at 1926] an [28 ‘Respondent's AEIC a [18 and (21) °*Responcents AEIC aat [21 ""Respondent's AEIC 28 (28) [20 21. The Trbunal's finding is based largely on the admissions of the Respondent in ‘ot having given advice in relation to the Legal Proceedings 22, In this regard, we refer to the following extracts from the Notes of Evidence (NOE"") soro NOE 14 Decomber 2021, pago 56 line 23to page $7 line 31 0 Are you suggesting now that you advised Ms Alka, her husband or Swina about the possibiliy of a scheme of arrangement for Swana? A That—that was from day 1 that was told to her to come up with the proposals. And other than-— ‘So when you say scheme of arrangement— Yes do you just mean better repayment proposals? Yes, yes, !—J meant in that and not in the literal sense of a Court-approved scheme of arrangements. Q So, to be clear, you've never advised Ms Alka, her husband or Swina about possible schemes of arrangement pursuant to Section 210 of the Companies Act? A No, not in this case. No, Ididn't Q Thank you. emphasis added in bold] NOE 15 December 2021, page 15 line 27 to page 16 line 27 @ You also did not advice [sic] Ms Alka and her husband ‘on a voluntary arrangement under Section 45 of the Bankruptcy Act and that that was the basis to stave off the bankruptcy proceedings. Do you agree? A 1 did not advise them on that voluntary arrangements because Thank you. A —May— 10 © Bo,you agree with m A Maybank was just not replying and the frst time President: if you want fo add on f0 your answer— Witnoss: Yes. 1 mean: President 4 wi give you loave. soxo>m Winess: Yes, so because Maybank had not responded, the counsel has President: Right Witnass: come up to me and asked the--they are not going to allow this because, Ihave strict instructions to proceed with &. Your proposal are rejected out of hand.” There's no basis left for me {0 do anything olse. Now this suggestion of voluntary: whatever he said earl Prosident: Arrangement What did you say? For—for the A voluntary arrangement under Section 45, Voluntary arrangement 0 you have something furthor to add, Mr Singh? ‘No, nothing. That--that's it ymphasis added in bold) o> o>o> NOE 15 December 2021, page 18 lines 3 to 12 °@ Now, similarly, you didn't advise your clients on @ Scheme of arrangement under Section 210 of the Companies Act, correct? bol did't You did not, right? Mm. Now, I suggest to you that that's what a reasonably competent and diligent lawyer would have done, agree?” Disagree. You also did not advise your client on judicial ‘management, agree? "" A Agree. [emphasis added in bold] 23. Asis clear from the extracts, the Respondent simply did not advise his clients on the options availabe to the cont in response to the bankruptcy and winding up applications, ie. the prospect of voluntary arrangements, schemes of arrangement andlor judicial management. 24. Further, the Respondent failed to advise his clientson the issue of balance sheet solvency: NOE 15 December 2021, Page 17 lines to7 ""Q So, tobe clear, you disagree with my statement that you did ‘not advise them about the balance sheet solvency. So is ‘your evidence that you did advise them about balance sheet solvency? A No, I did not advise them on the balance sheet insolvency [sic] because they didn't—because my instructions were they didn't have the money. 25. This was notwithstanding the Respondent's acceptance that (a) Swina’s balance sheet recorded an excess of total assets over liabilties and (b) a Cour, at the time when the winding up applications were heard, would consider the issue of balance sheet solvency before granting the applcation.""* In respect of the former, the Tribunal noted that Swina’s total assets as at 31 December 2016 were valued at the amount of SGD 18,577.381.41.""* which would have been large enough to settle or substantially settle Swina’s debts to the creditor banks, 26. This fact could have been relied on to either persuade the creditor banks (in particular, Maybank) to grant mare time for repayment, of at the very least, to NOE 14 Docemder 202%, page 25 ine 1910 page 27ine 13. Aud Statement of Accounts fo"" year ended 31 December 2016, page8 (Ag 1s Bundle ""‘of Swra's Documents, page °9), seek an adjournment from the Court. However, this was not done. Nor did the Respondent advise his clients on the same 27. In fact, it would appear that the Respondent never advised nis clients to challenge the bankruptey and winding up proceedings by. for instance, fling a reply affidavit exhibiting documents evidencing of Swina’s financial position andior legal submissions, The Respondent made no mention of this in his Affidavit of Evidence-in-Chief or during the hearing, and did not produce any documents evidencing that such advice had been given. In this regard, given the absence of credible (or more accurately. any) contemporaneous records taken by the Respondent, we found it appropriate to draw an adverse inference against the Respondent 28. Perhaps mote shockingly, the Respondent did not even advise his clients on Maybank’s position in respect of his clients’ repayment proposal, and the Implications. of this position on the bankruptcy proceedings, until affer the bankruptey orders had been granted by the Court: smber 2021, page 15 lines 7 to 4 '@ So when did you actually inform Ms Alka and her husband about what Maybank solicitors told you? A Alter ve boen informed ofthis, on that very same morning| ‘informed her @ Was it before or after Attor my cone A Q =the bankruptcy orders were made? A ‘tor my conversation with the. Q That's not my question, Mr Singh, A Okay. After the order was made. [emphasis added in bold] Law Societyof Srgaporev Tan Phy Khiang (20073 SLR(R) 477 at 82), 29. This is despite the fact that the Respondent had. by his own admission, told tho ‘Complainant that it would be a “matter of formality"" to adjourn the hearings on the basis that negotiations with the creditor banks were underway."" and that ‘would take about 6 to 9 months before the applications would be determined by the Court as a result of the creditor banks needing time to consider the proposals.®? 30. AS a result, the Complainant, her husband and Swina were deprived of the ‘opportunity to consider whether a revised repayment proposal could be pul forward to Maybank to avoid the bankruptcy and winding up orders being made. 31. Finally, after the bankruptcy and winding up orders had been made, the Respondent failed to advise his clients on their options moving forward: NOE 15 De mber 2024 46 to24 Now, after the orders were made, you also did not advise your clients on the possibility of appeals or setting aside the bankruptcy or winding up orders, agree? A Setting aside, you are agai 2 —_Sotting aside or appealing the bankruptcy or winding-up orders, A The bankruptcy order, no, | did not advise them on it. [emphasis added in bold] 32. Throughout the disciplinary proceedings, the Respondent took the position that he had advised his clients by telling them to come up with improved repayment proposals that would be acceptable to the banks In our view, this was not at all sufficient. 2 NOE 15 December2027, page 10 ines 25 to 29 NOE 15 December 2027. poge 1 ines 1210 17 P Respenents AEIC st (26) NOE 1 December 2021, page S8 Ine 261 page $8 ine 18, 33. As the High Court held in Law Socioty of Singapore v K Jayakumar Naidu {2012} 4SUR 1282 “Solicitors have a duty fo loyally advance their chints’ interests with digence and competence. Among its muttioie facets, this duty (0 be advised fal i faith of ‘issues peculiar to the matter at hand, .. ll solicitors also owe their clients a fundamental duty of undivided loyalty to ethically advance their cont’ interests and not place themselves ina position of conflict Advice to clients has to be prompt and commensurate with their needs, and not perfunctory,A grave failure to adequately discharge these duties of care and loyalty, whether resutting rom ignorance or a ack of conscientiousness, may expose a solicitor fo disciplinary action {and invito sanctions by the court, It is all the more troubling if in the course of an engagement the solicitor repeatediy abaicates from these responsibilities to his client."" emphasis added in bold and underline) 34. In teling his cients to do nothing more than to come up with better repayment proposals, the Respondent's advice was plainly perfunctory. Tho very least the Respondent would have been expected to do was to, upon learning of Maybank’s rejection of his clents’ offer at the door of the Court, update his clients and seek ‘an adjournment ffom the Court on the basis that he had just been informed that his clients’ offer was rejected. Seyond belief, he instead went as far as to accept ‘Maybank’s solicitors’ offer to mention on his bhatt 35, The Respondent's otner answer to the charge was that his clients had no money and therefore he would be misteading the court if he did anything in relation to the Legal Proceedings. We do not accent this excuse because. as an Advocate and Solicitor, he should have atleast raised the available options to his clients (ie. challenging the applications, a voluntary arrangement, a scheme of arrangement andior jucicial management), even though it may have been dificult NOE 15 December 2023, 09017 ines 14 to 22 and page 17 ine 28:0 page 1B ine 2 17th ",2023-01-10T04:00:00+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2023/,"In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2023/",0c1312bea41be63c83d5708823498b6111b7122c,"[""title"",""pdf-link"",""pdf-content"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,7,7,1,1049,"In the Matter of Seow Theng Beng Samuel (Respondent), Advocate & Solicitor","In the Matter of Seow Theng Beng Samuel (Respondent), Advocate & Solicitor These proceedings arose from information referred by the Council of the Law Society of Singapore (Law Society) in relation to the conduct of the Respondent, which stemmed from the following circumstances: The initial lodging of a complaint against the Respondent by a former employee of the Respondent’s firm, Samuel Seow Law Corporation, who subsequently withdrew the complaint; and The publication of media reports on the Respondent’s abusive behaviour towards his employees; Upon the application of Council, the Chief Justice empanelled a Disciplinary Tribunal (DT), presided by Mr Siraj Omar SC, and Mr Pradeep Pillai, as DT member. Charges Eight (8) principal charges were preferred against the Respondent with alternative charges pursuant to section 83(2)(h) of the Legal Profession Act 1966 (LPA) (collectively, the Charges). After the hearing had commenced, the Respondent pleaded guilty to all of the Charges and Alternative Charges preferred against him. 1st Charge (Charge 1) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (PCR), in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing files and boxes on the floor in her direction, screaming at her, and verbally abusing her. 2nd Charge (Charge 2) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing a metal stapler on the floor in her direction on 26 March 2018. 3rd Charge (Charge 3) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing a metal stapler on the floor in her direction on 28 March 2018. 4th Charge (Charge 4) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by shouting and advancing towards her in an aggressive manner, such that she stumbled and fell. 5th Charge (Charge 5) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing his wallet in her direction, and threatening to kill her with a knife. 6th Charge (Charge 6) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent used criminal force against his employee. 7th Charge (Charge 7) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in which the Respondent verbally abused his employee and voluntarily caused hurt to her. 8th Charge (Charge 8) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in which the Respondent verbally abused and used criminal force against his employee. Findings and Determination of the DT The DT found that the facts relating to the Respondent’s conduct were not disputed and painted a clear picture of physical and verbal abuse. The DT also found that the Respondent’s conduct towards his employees was an abuse of his position of authority over them. The DT found that the seriousness of the Respondent’s misconduct, and the fact that it contravened both sections 83(2)(b) and 83(2)(h) of the LPA, sufficiently constituted cause of sufficient gravity within the meaning of section 93(1)(c) of the LPA in the absence of valid mitigating factors. The DT considered the mitigating factors proffered by the Respondent and found that: They did not assist in mitigating the seriousness of the Respondent’s conduct; The Respondent’s contemporaneous conduct did not reflect genuine remorse; and The arguments raised by the Respondent in mitigation were not sufficient in persuading the DT that the severity of the misconduct did not amount to “cause of sufficient gravity”. The DT therefore found that cause of sufficient gravity for disciplinary action existed and ordered that the Respondent pay the Law Society’s costs in relation to the proceedings. Council adopted the findings and recommendations of the DT and made the application pursuant to section 98 of the LPA for the Respondent to show cause. Pursuant to an application by the Law Society for the Respondent to be sanctioned under section 83(1) of the LPA, the C3J* found that there was due cause for the Respondent to be sanctioned, and ordered that the Respondent be struck off the rolls on 18 May 2022. To access the full report, click here. *The decision of the C3J can be found in Law Society of Singapore v Seow Theng Beng Samuel [2022] SGHC 112. ",https://lawgazette.com.sg/wp-content/uploads/2022/12/dtr_dec_22.pdf,"DT 5 OF 2019 IN THE MATTER OF SEOW THENG BENG SAMUEL AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Siraj Omar, S.C. - President Pradeep Pillai - Advocate Solicitor for The Law Society of Singapore Solicitors for the Respondent Mr Dinesh Dhillon / Mr Leong Tse Chuan / Ms Alisa Toh Qian Wen (Allen & Gledhill LLP) Mr Eugene Thuraisingam / Mr Chooi Jing Yen/ Mr Johannes Hadi (Eugene Thuraisingam LLP) ,Jl Dated this JO day of March 2020 .' INTRODUCTION 1. The Law Society of Singapore (the ""Law Society"") brought eight charges against Mr Seow Theng Seng Samuel (the ""Respondent""). The specific charge·s were amended several times, and (as we describe below) the Respondent eventually pleaded guilty to each of the charges framed against him. 2. Having carefully considered the facts of the case and the parties' respective submissions, we find that cause of sufficient gravity for disciplinary action exists: (a) under Section 83(2)(b) of the Legal Profession Act (Cap. 160, the ""Act"") in respect of each of the Charges (as defined below); and (b) under Section 83(2)(h) of the Act in respect of each of the Alternative Charges (as defined below). 3. We set out our grounds below. THE CHARGES 4. The Law Society framed eight charges against the Respondent ( collectively, the ""Charges""), alleging that the conduct set out in each of these charges amounted to ""improper conduct or practice as an advocate and solicitor"" within the meaning of · Section 83(2)(b) of the Act. 1 1 The Law Society's Statement of Case (Amendment No. 3) (the ""SOC""), at [21). 1 .. 5. The Law Society also framed alternative charges (collectively, the ""Alternative Charges"") in respect of each of the Charges, asserting (in the alternative) that the conduct described in each of the Charges also amounted to ""misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession"" within the meaning of Section 83(2)(h) of the Act. 2 6. The Charges and Alternative Charges were set out in the Law Society's Statement of Case, which was amended a total of four times. At the start of the hearing before us, the iteration of the charges facing the Respondent was set out in the Law Society's Statement of Case (Amendment No. 1). The Respondent pleaded guilty to the following part of the Fifth Charge and to the whole of the Sixth, Seventh and Eighth Charges: ""Fifth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 3 April 2018, at about 8pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (ij (ii) Threatened to take a knife to kill Ms Kang Pei Shan Rachel. Sixth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 17 April 2018, at about 5:54pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, 2 SOC, at [21]. 2 .' hava conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of.conduct made by the Professional Conduct Council under Section 71 of the Act), in that you used criminal force against one Ms Kang Pei Shan Rachel by using your finger to jab her forehead, and by pushing the files that Ms Kang Pei Shan Rachel was holding against her chest. Seventh Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 17 April 2018, at about 5:54pm, atthe office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section '71 of the Act), in that you: (i) Voluntarily causing hurt to one Ms Kong Shing Ying Brenda by grabbing her arms, pushing her against a table, repeatedly slapping her, jabbing your finger at Ms Kong's forehead and pushing Ms Kong with your shoulder such that she lost balance and fell backwards; and/or (iO Verbally abused Ms Kong Shin Ying Brenda by aggressively berating her and screaming at her. Eighth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 17 April 2018, at about 5:58pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (i) Used criminal force against one Ms Tan Tzuu Yen Serene by pushing her with such force that she fell to the floor; and/or 3 . ' (ii) Verbally abused Ms Tan Tzuu Yen Serene by aggressively berating her and screaming at her. 7. The Respondent initially contested the First to Fourth Charges and the remaining part of the Fifth Charge, as well as the alternatives to each of these charges. We proceeded to hear evidence from witness for both the Law Society and the Respondent in two tranches, from 14 to 16 August 2019 and on 26 and 27 September 2019. We then directed parties to submit their respective closing submissions by 25 October 2019, and scheduled a hearing for oral closing submissions on 19 November 2019. 3 8. On 1 November 2019, the Law Society sought leave to further amend their Statement of Case, and informed us that the Respondent was prepared to plead guilty to the remainder of the charges as set out in the proposed amendments. 4 The Respondent 5 confirmed this, and we allowed the proposed amendments. 6 9. At the hearing on 19 November 2019, the Law Society sought, and was granted, leave to file a further amended Statement of Case incorporating one minor amendment. The Respondent subsequently pleaded guilty to the First to Four Charges and the remainder of the Fifth Charge (and their alternatives) as set out in the Statement of Case (Amendment No. 3). These Charges read: ""First Charge 3 4 The Tribunal's directions made at the end of the hearing on 26 September 2019. Letter dated 1 November 2019 from The Law Society's solicitors Allen & Gledhill LLP to the Secretariat. 5 6 Email dated 1 November 2019 from the Respondent's solicitors Eugene Thuraisingam LLP to the Secretariat. The Tribunal's directions dated 4 November 2019. 4 , That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 16 March 2018, at or about 7pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section - 83{2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules {being a rule of conduct made by the Professional Conduct Council under Section 71 of/he Act), in that you: (i) Conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by throwing files and boxes on the floor in her general direction, and/or by screaming at her; and/or (ii) Verbally abused Ms Kang Pei Shan Rachel by screaming at her. Second Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 26 March 2018, sometime in the afternoon, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules {being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by throwing a metal stapler on the floor in her general direction. Third Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 28 March 2018, at about 3pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2){b) of the Act by breaching rule 8(3){b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by throwing a metal stapler on the floor in her general direction. 5 . .. Fourth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 28 March 2018, at about 9pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the A_ct by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (ij Conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by advancing towards her in an aggressive and/or threatening manner such that she stumbled and fell to the floor, and/or by shouting at her; and/or (iij Verbally abused Ms Kang Pei Shan Rachel by shouting at her. Fifth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 3 April 2018, at about 8pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (i) Conducted yourself in an intemperate and/or ~?orish manner towards one Ms Kang Pei Shan Rachel by repeatedly throwing your wallet in her general direction; and/or (ii) 10. The Respondent therefore admitted the facts as set out in the Statement of Case (Amendment No. 3) and pleaded guilty to all of the Charges and Alternative Charges 6 .. proffered against him. The Respondent's admissions mean that it is common ground between the parties that the Respondent's conduct as described in: 7 (a) The Charges amounted to improper conduct under Section 83(2)(b)(i) of the Act; and (b) The Alternative Charges amounted to misconduct unbefitting an advocate and solicitor under Section 83(2)(h) of the Act. THE FUNCTION OF THE DISCIPLINARY TRIBUNAL 11. The function of a Disciplinary Tribunal is to act as a filter in order to determine whether or not there is 'cause of sufficient gravity' that could, on a finding by the Court of Three Judges, be ascertained to constitute 'due cause' that merited the imposition of one of the range of sanctions prescribed in Section 83(1) of the Act: Law Society of Singapore v Jasmine Gowrimani dlo Daniel (""Jasmine Danief'). 8 12. It is not for us to determine whether or not 'due cause' has been established in this case - that determination lies solely within the purview of the Court of Three Judges. Our role is to decide whether 'cause of sufficient gravity' has been established, and for that we need only be satisfied that there was a prima facie case on the relevant evidence that 'due cause' might be present: Jasmine Danie/. 9 If we conclude that 'cause of sufficient gravity' has been established, the Law Society is obliged pursuant to Se.ction 94 of the Act to make an application under Section 98 of the Act to the Court of Three Judges. 7 See also the Agreed Statement of Facts (Amendment No. 1). 8 [201 OJ 3 SLR 390, at [37]. 9 Ibid., at [31 ]. 7 13. We are also mindful that the fact that it is common ground that while the Respondent's conduct fell within the ambit of limbs (b) and (h) of Section 83(2), this does not necessarily mean that 'cause of sufficient gravity' had been established: Jasmine Danie!. 10 14. We turn to consider the parties' respective submissions in light of these principles. THE PARTIES' RESPECTIVE CASES 15. The options available to us at the close of proceedings are set out in Section 93(1) of the Act: ""93 (1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal shall record its findings in relation to the facts of the case and according to those facts shall determine that - (a) no cause of sufficient gravity for disciplinary action exists under section 83_ or 83A (as the case may be); (b) while no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be), the regulated legal practitioner should be - (i) ordered to pay a penalty that is sufficient and appropriate to the misconduct committed; (ii) reprimanded; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub-paragraph (iiij in addition to the measure in sub-paragraph (ij or (iij; or 10 Ibid., at [39]. 8 (c) cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be)."" 16. The Law Society submitted that cause of sufficient gravity for disciplinary action, within the meaning of section 93(1)(c) of the Act, had been shown to exist. Its grounds on which it bases its case can broadly be summarized as follows: (a) 11 The nature of the Respondent's conduct is sufficiently serious by itself to amount to a prima facie case of ""due cause"" under Section 83 of the Act; (b) The Respondent was in a position of authority vis-a-vis the victims, who were his employees; (c) The Respondent's conduct was part of a pattern of intemperate, boorish and belligerent conduct, and were not isolated incidents; and (d) 17. The Respondent has not shown genuine remorse for his actions. The Respondent argued that no cause of sufficient gravity for disciplinary action existed, but that the circumstances nonetheless warranted him bein·g ordered to pay a fine of S$20,000. He described such a fine as the ""most proportionate sanction in this case"", 12 claiming in mitigation that: (a) ""little if any harm was caused"" to the individual victims in this case; 11 The Law Society's Skeletal Submissions on Sanction (the ""LSS' Submissions""), at [42]. 12 The Respondent's Submissions on Sentence (the ""Respondent's Submissions""), at [8]. 9 18. (b) he was suffering from ""Adjustment Disorder"" at the relevant time; (c) he is ""deeply and genuinely remorseful for his behavior'; and (d) his conduct had caused little harm to the integrity of the legal profession. The Law Society's arguments referred to in paragraphs 16(a) to (c) above and the Respondent's argument referred to in paragraph 17(a) above all broadly relate to the severity of the Respondent conduct. We shall therefore deal with this issue first. THE TRIBUNAL'S FINDINGS (a) The severity of the Respondent's conduct 19. The Law Society highlighted several facts which they claimed underscored the severity of the Respondent's conduct. First, the Seventh and Eighth Charges relate to overt acts of physical violence inflicted by the Respondent on Ms Kong Shin Ying Brenda (""Ms Kong"") and Ms Tan Tzuu Yen Serene (""Ms Tan""). 13 20. While Ms Tan did not seek medical treatment after the incident, Ms Kong did do so and was assessed by the examining doctor at Parkway .East Hospital to have sustained ""multiple soft tissue injuries as a result of the assaulf'. The examining doctor also noted tenderness, bruising and abrasions on various parts of Ms Kong's head and body. 14 13 The Respondent's Submissions on Sentence (""Respondent's Submissions""), at [8]. 14 LSS' Submissions, at [47]. 10 , , 21. Second, it is plain from the video recording of the incident that the Respondent was much larger than both Ms Kong and Ms Tan, and was clearly the aggressor in both altercations. 15 It is also clear from the video that the Respondent would have continued attacking Ms Kong and Ms Tan, and most likely have inflicted more severe injuries on both of them, if not for the fact that he had been physically restrained by other employees and thereby prevented from doing so. 22. 16 Third, the attacks had been triggered by a fairly trivial matter - namely, that the Respondent had to meet a client with an associate from the firm but that associate was apparently not in the office at that time. It had nothing to do with any act or omission on the part of either Ms Kong or Ms Tan. 23. 17 Fourth, the Sixth Charge relates to physically aggressive conduct by the Respondent against Ms Kang Pei Shan Rachel (""Ms Kang""). The Respondent has been charged with an offence of using criminal force under Section 352 of the Penal Code for using his finger to jab Ms Kang's forehead knowing that such action would illegally cause annoyance to Ms Kang. 18 24. Fifth, the First to Fifth Charges relate to intemperate and/or boorish conduct by the Respondent directed towards Ms Kang on five separate occasions. These incidents involved (i) throwing files, boxes, a metal stapler and his wallet in Ms Kang's general direction, (ii) shouting at, and advancing towards, Ms Kang in an aggressive and/or threatening manner, and (iii) threatening to take a knife to kill Ms Kang. 15 LSS' Submissions, at [50]. 16 LSS' Submissions, at [59(a)]. 17 LSS' Submissions, at [51]. 18 LSS' Submissions, at [62]. 19 LSS' Submissions, at [66]. 11 19 25. Sixth, the Respondent was charged under Section 3(1 )(a) of the Protection from Harassment Act with using threatening words against Ms Kang with intent to cause distress. This was in relation to the Respondent's threat to take a knife to kill Ms Kang, which also forms part of the Fifth Charge. 26. The Law Society referred to and relied on the decision of the Court of Three Judges in Law Society of Singapore v Wong Sin Yee (""Wong Sin Yee""). 20 That case involved an incident of what is commonly termed 'road rage'. and the respondent advocate and solicitor in that case was charged and convicted in the State Courts under the then Section 323 of the Penal Code for having voluntarily caused hurt to a member of the public, as well as under Section 13A(1 )(a) of the Miscellaneous Offences (Public Order · and Nuisance) Amended Act for uttering insulting words to a member of the public. 27. The Court of Three Judges in that case found that the respondent advocate and solicitor's behavior ""constitute[d] a defect of character and render[ed] him unfit to be an advocate and solicitor'. and that his conduct fell within the ambit of Section 83(2)(a) of the Act. 21 He was consequently suspended from practice for two years. 28. The Law Society relied on the decision in Wong Sin Yee to support its contention that the Respondent's acts of physical violence and verbal abuse towards the various individuals were sufficient to constitute 'cause of sufficient gravity'. The Law Society submits that, as was the case with the respondent advocate and solicitor in Wong Sin Yee, the Respondent here had also demonstrated a serious lack of self-restraint. 22 20 [2003] 3 SLR(R) 209. 21 Ibid., at [15]. 22 LSS' Submissions, at [57]. 12 , , 29. The Law Society also submitted that the Respondent's conduct had not been borne out of mere frustration with Ms Kang's work performance. They argued that the severity and persistence of the Respondent's physical aggression towards Ms Kang (by throwing objects in her general direction and advancing towards her in an aggressive and threatening manner) was evidence of something more, and in fact amounted to bullying. 23 30. They also argued that the severity of the Respondent's scolding of Ms Kang (in terms of volume, frequency and vituperation) was out of proportion to any perceived shortcomings in her work performance, and that there were in any event more appropriate options for dealing with any such shortcomings. 24 31. These facts are not disputed. Taken as a whole, we agree with the Law Society that they paint a clear picture of physical and verbal abuse by the Respondent. 32. It is common ground that as their superior at work, the Respondent was in a position of authority vis-a-vis each of Ms Kang, Ms Kong and Ms Tan. The Respondent's physically and verbally abusive conduct towards these individuals was therefore an abuse of his position of authority over them. 33. We also note that the conduct set out in the Charges (which Respondent admitted) did not involve ""isolated incidents or momentary lapses"". Instead, as the Law Society argues, they appear to be indicative of a pattern of intemperate, boorish and belligerent conduct on the Respondent's part. 25 23 LSS's Submissions, at [72(a)]. 24 LSS's Submissions, at [72(b)]. 25 LSS's Submissions, at [75]. 13 ' ' 34. When all these facts are considered together, the picture that appears is one that shows the Respondent physically and verbally abusing his subordinates in a manner that was not 'one-off' of the resulted of momentary lapses. On any analysis, such misconduct cannot be described as anything other than serious. 35. The seriousness of the Respondent's misconduct and the fact that it contravened both Section 83(2)(b) and 83(2)(h) of the Act would in our view suffice to constitute cause of sufficient gravity within the meaning of Section 93(1 )(c) of the Act in the absence of any valid mitigating factors. We therefore turn next to consider whether there are any such mitigating factors. (b) Harm caused. and impact on. the victims 36. The Respondent argues there was little, if any, harm caused to Ms Kang, Ms Kong and Ms Tan. He points to the fact that Ms Tan did not suffer any injuries as a result of the Respondent's conduct described in the Eighth Charge (which is the only Charge that relates to her). 37. He also relies on two statements from Ms Kang and Ms Kong dated 28 May 2019 26 and 26 June 2019 27 respectively (collectively, the ""Statements""). In Ms Kang's statement, she states that she ""did not suffer any injuries as a result of [the Respondent's] actions on 17 April 2018"". 28 38. Similarly, Ms Kong states that ""although the incident may have appeared violent, [she] only suffered minor injuries such as a scratch and bruise"". She describes the incident 26 The Respondent's Bundle of Documents ""RBOD"") Tab 1. 27 RBOD Tab 2. 28 RBODTab1. 14 'I as ""no more than a noisy and dramatic altercation caused by loud shrieking and some shoving"". 29 The Respondent also relies on the fact that both Ms Kang and Ms Kong ""have wholeheartedly chosen to forgive the Respondent and continue to affirm him"". 30 39. The Law Society objected to these Statements, arguing that they are inadmissible because the Law Society did not have the opportunity of cross-examining the makers of the Statements as they were only tendered as part of the Respondent's closing arguments. The Law Society also argued that even if admissible, the Statements are irrelevant to the question of whether or not sufficient cause of gravity exists. 40. Having considered the parties' arguments and authorities on this issue, we find that the Respondent is entitled to tender and refer to the Statements. However, having considered the contents of the Statements, we find that they are of not much assistance to the Respondent in mitigating the seriousness of his conduct. 41. Taken at face value, the Statements simply set out the purported impact of the Respondent's conduct on Ms Kang and Ms Kong, and that they have both forgiven the Respondent. Two factors are relevant when considering these Statements. First, both Ms Kong and Ms Kang may well have been motivated to speak out in support of the Respondent in these proceedings because the former is his niece and the latter remains an employee of his company. 42. Second, the video of the 17 April 2018 incident clearly shows that the Respondent had to be physically restrained from further attacking Ms Kong and Ms Tan. Had he not been so restrained, he would very likely have inflected more serious injuries on them. The fact that Ms Kong's injuries were relatively minor was likely purely fortuitous. 29 RBOD Tab 2. 30 Respondent's Submissions, at [12]. 15 ' ' 43. The relevance of the Statements is therefore (at best) minimal when considered in the context of these factors. (c) 'Adiustment Disorder' 44. The Respondent argues that he has been ""diagnosed with Adjustment Disorder at the time of the offences"" and that this ""contributed to the commission of the offences"". 31 He relies in this regard on two medical reports dated 21 August 2019 32 and 13 September 2019 33 (the ""Medical Reports"") from Dr Tan Chue Tin, a clinical psychotherapist. 45. Dr Tan states in his first report that the Respondent ""suffered from Adjustment ,--a-.-, ·- Disorder at the time of the altercation recorded in the audio-video clips of April 2018 I 2019"". 34 He expands on this in his second report, saying that the Adjustment Disorder ""contributed to the commission of the offences as depicted'' in the video of the 17 April 2018 incident. 35 46. The Law Society also objected to these Medical Reports on the same grounds as the - Statements. As with the Statements, we find that while the Respondent is entitled to tender and refer to them as part of his mitigation, they do not assist him very much. 47. We note that Dr Tan first saw· the Respondent only _in May 2019, more than a year after the incidents that formed the subject of the charges. Yet the Medical Reports do 31 Respondent's Submissions, at [14]. 32 RBOD Tab 3. 33 RBOD Tab 4. 34 RBOD Tab 3, at page 10. 35 RBOD Tab 4, at [3]. 16 not contain any explanation as to how Dr Tan was able to ascertain that the Respondent suffered from Adjustment Disorder at the time of the incidents. More importantly, Dr Tan does not explain exactly what Adjustment Disorder is and how it purportedly contributed to the Respondent's behavior during the incidents. We therefore found the Medical Reports to be of very little assistance. (d) Remorse 48. The Respondent claimed that he was ""deeply and genuinely remorsefuf' for his behavior. In his affidavit of evidence-in-chief, he stated: ""Lastly, I acknowledge and take full responsibility for my inability to manage my anger. I am also, by nature, a flamboyant and animated person. When I lose my temper, I often scream and shout and throw things about. However, I wish to state that despite my anger management problem, I have never intended to hurt anyone. I regret and unreservedly apologise for my actions. I am undergoing medical treatment to ensure that this does not happen again."" [Respondent's emphasis] 49. The Law Society. contends that the Respondent has not shown genuine remorse for his actions, arguing that this is clear from his contemporaneous conduct. They point in particular to the following: (a) When first confronted with the complaints, the Respondent did not admit any wrongdoing but instead claimed that Ms Kang had been manipulated by one Mr Robert Raj Joseph and Mr Lew Shaun Marc. The Respondent's letter of 2 October 2018 to the Inquiry Committee36 sought to downplay the physical altercation with Ms Kong on 17 April 2018 and sought to justify his conduct by alleging that she had hit him first. 36 Law Society's Supplemental Bundle of Documents (""LS Supp BOD"") Tab 7, at [88] to [99]. 17 (b) In an interview with the Today newspaper published on 17 May 2018, 37 the Respondent sought to downplay the incident which forms the subject of the Seventh Charge, claiming that Ms Kong had ""shoved him first and he had then slapped her for being rude"". He described the incident as a ""typical family type of fighf' (Ms Kang being the Respondent's niece). (c) In that same interview, he claimed that he had not shoved Ms Tan to the ground but had rather ""accidentally knocked her to the ground when he turned around'. This is materially different from the facts set out in the Eighth Charge, which the Respondent now admits. The Respondent admitted to the quotes attributed to him in this interview. (d) In an interview with 8 Days magazine published on 31 May 2018, the Respondent is quoted as having denied punching people, throwing things or hurting people. His denial of having been physically violent is clearly untrue in light of his admissions in these proceedings. The Respondent admitted to the accuracy of the quotes attributed to him. (e) In posts on his Facebook page dated 26 April 2019 38 and 6 June 2019, 39 the Respondent sought to downplay the events which are the subject of some of the Charges. He admits having made these posts. 50. The Respondent's conduct from the time of the incident is clearly relevant to ascertaining whether he is truly remorseful for what happened. 37 Law Society's Bundle of Documents (""LSBOD"") Tab 14. 38 LS Supp BOD Tab 3. 39 LS Supp BOD Tab 4. 18 A review of the Respondent's conduct reveals a clear difference in his conduct before and after April 2019, when the video of the 17 April 2018 incident was made public. 51. The Respondent's correspondence with the Inquiry Committee and the interviews referred to in paragraph 49(a) to (d} above all pre-dated the public disclosure of the video. Far from expressing remorse, the Respondent seeks to deflect blame and responsibility. His approach changed once the video was made public, as evidenced by the social media posts referred to in paragraph 49( e) above. The Respondent expressly referred to the video and sought to downplay the severity and significance of the events. His conduct at the material time therefore does not reflect any degree of remorse on his part. 52. We therefore find that the Respondent's contemporaneous conduct does not support his assertion that he is genuinely remorseful about the incidents that are the subject of the complaints. (e) The Respondent's other arguments 53. The Respondent also makes two broad arguments in support of his submission that no cause of sufficient gravity exists and that a high fine would be the appropriate sanction in this case. First, he argues that he ""manifests a high potential for rehabilitation because he demonstrates insight into his psychiatric condition"" 40 (his emphasis). He relies on the fact that he voluntarily sought psychiatric help and ""is receiving help from Dr Augustine Tan, an experienced psychotherapisf'. 40 Respondent's Submissions, at [19]. 19 . _, 54. We find it self-serving for the Respondent to claim that he has a high potential for rehabilitation. We note that while he relies on the fact that he sought medical help, he did not do so until more than a year after the incidents and only after the video of the incident had been made public. We also note that we do not have the benefit of Dr Augustine Tan's views on this issue. 55. In any event, we do not think that the Respondent's potential for rehabilitation is a factor for us to consider in deciding whether 'cause of sufficient gravity' exists on the facts of this case. That may well be relevant for the Court of Three Judges' considerations on the appropriate sentence should they find that 'due cause' has been established. Even if we are wrong, and the potential for rehabilitation is a factor that we should consider at this stage, there is no evidential basis for us to conclude that the Respondent has a high potential for rehabilitation. 56. Second, the Respondent refers to the judgment of the Court of Three Judges in Law Society of Singapore v Ravi s/o Madasamy (""Ravi Madasamy''), where the Court outlined the principles governing the imposition_ of sanctions in disciplinary proceedings - namely (i) the need to protect members of the public, (ii) the need to uphold public confidence in the integrity of the profession, (iii) the need to deter the same or other solicitors from similar behavior, and (iv) the need to punish the particular solicitor involved. 57. The Respondent argues that these factors, when considered in the context of the facts of this case, support his submission that the imposition of a fine would suffice. 58. We do not agree. In our view, the Respondent's reference to and reliance on Ravi Madasamy is misplaced. The Court of Three Judges in that case set out the principles governing the sentencing of advocates and solicitors where 'due cause' is found to 20 \ have been established. That is plainly evident from the principles themselves, which include considering the impact on members of the public as well as the legal profession as a whole. 59. Such considerations are not within our remit. Our role is limited to deciding whether 'cause of sufficient gravity' has been established to warrant the referral of this matter to the Court of Three Judges. If we answer that question in the affirmative, it would then be for the Court of Three Judges to decide whether 'due cause' has been established, and if so to impose the appropriate sentence having considered the various principles discussed in Ravi Madasamy. 60. We therefore find that the arguments raised by the Respondent in mitigation are not sufficient to persuade us that the severity of his misconduct does not amount to 'cause of sufficient gravity'. CONCLUSION 61. We therefore find and determine, within the meaning of Section 93(1 )(c) of the Act, that cause of sufficient gravity for disciplinary action exists under Section 83(2)(b) of the Act in respect of each of the First to Eighth Charges. 62. We also find and determine, within the meaning of Section 93(1)(c) of the Act, that cause of sufficient gravity for disciplinary action exists under Section 83(2)(h) of the Act in respect of each of the Alternative First to Eighth Charges. 21 63. We also order, pursuant to Section 93(2) of the Act, that the Respondent pays the Law Society's costs in relation to these proceedings, such costs to be taxed by the Registrar if not agreed. fl, Dated this /0 Siraj Omar, C President day of March 2020 Pradeep Pillai Advocate 22 ",2022-12-05T02:00:23+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-dec-2022/,"In the Matter of Seow Theng Beng Samuel (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-dec-2022/",96faa9526ca05e5cb0b3609b8c922d94f36a4e6f,"[""title"",""pdf-link"",""pdf-content"",""unique_id"",""url"",""content"",""timestamp""]" 2023-11-12T10:03:15+00:00,2297998b69bece5ba5013b5d88c4b20c9b153661,8,8,1,1049,"In the Matter of Yeo Poh Tiang [Yang Baozhen] (Respondent), Advocate & Solicitor","In the Matter of Yeo Poh Tiang [Yang Baozhen] (Respondent), Advocate & Solicitor These proceedings arose from a complaint lodged by one Mdm Koh Hwee Miem (Complainant). On 12 February 2020, the Complainant paid Yeo & Associates LLC (the Firm) a sum of fees to utilise the services offered on an online portal developed by the Respondent to facilitate and expedite uncontested divorces (the Portal). On 5 March 2020, the Complainant requested for a full refund of fees paid as there had been no communication with either the Firm or the Respondent following the payment made on 12 February 2020. The Firm rejected the Complainant’s request on the following grounds: Payment made was non-refundable; and Payment was considered “fully utilised” upon access to the Portal pages. In the absence of an amicable resolution, the Complainant lodged a complaint against the Respondent by way of a letter to the Law Society of Singapore (the Law Society). Upon the application of Council, the Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Andre Yeap SC and Mr Anand Nalachandran as DT member. Charges Two (2) charges and two (2) alternative charges (collectively, the Charges) were preferred against the Respondent. First Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the Legal Profession Act 1966 (LPA), in which the Respondent breached Rule 17(3) of the Legal Profession (Professional Conduct) Rules (PCR), having failed to inform the Complainant that the fees paid were charged on a non-refundable basis. Alternative First Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, in that the Respondent failed to inform the Complainant that fees paid were charged on a non-refundable basis. Second Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA, in which the Respondent breached Rules 5(2)(c) and (h) of the PCR, having failed to provide and/or initiate the timely provision of services paid for by the Complainant, despite representations that services were fast and expedient. Alternative Second Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, in that the Respondent failed to provide and/or initiate the timely provision of services paid for by the Complainant, despite representations that services were fast and expedient. Findings and Determination of the DT First Charge The DT found that the First Charge was made out. The DT found that the Complainant had become a client of the Respondent and the Firm from the time the Complainant utilised the Portal and made payment of the fees on 12 February 2020. The DT found that the disclaimers on the Portal did not negate the presence of a retainer, noting that the disclaimers on the Portal referred to registered users as “clients”. The DT also found that the disclaimers on the Portal did not inform users that their payments were non-refundable. The DT did not accept the Respondent’s explanation that the phrase set out in the Portal being, “your payment is considered fully utilized when you access the subsequent pages for the paid service” adequately conveyed that fees were paid on a non-refundable basis as a “fully utilized” payment could still be refunded. Second Charge The DT found that the Second Charge was not made out. The DT did not find that the Respondent had failed to act with reasonable diligence and competence in providing timely advice to the Complainant, as the Portal provided users with 30 days to edit the online forms submitted. The DT therefore concluded that the Respondent had not acted unreasonably in waiting for the Complainant to edit the forms. DT’s Recommendations Having made their findings on the Charges, the DT determined that while no cause of sufficient gravity for disciplinary action existed under section 83 of the LPA, the Respondent should be reprimanded. Pursuant to section 93(2) of the LPA, the DT ordered that costs fixed at $8,000 (plus reasonable disbursements) be paid to the Law Society. Council adopted the findings and recommendations of the DT. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2022/11/dtr_nov_22.pdf,"1 DTlr5l202l In the Matter of Yeo Poh Tiang (Yang Baozhen) an Advocate & Solicitor And In the Matter of the Legal Profession Act 1966 REPORT OF THE DISCPLINARY TRIBUNAL DISCPLINARY TRIBUNAL PRESIDENT: ADVOCATE & SOLICITOR: MR ANDRE YEAP, SC MR ANAND NALACHANDRAN COUNSEL FOR LAW SOCIETY OF SINGAPORE: MS. SHUMIN LIN/ MR BENJAMIN TAN ZHI XIONG COUNSEL FOR RESPONDENT: MR N. SREENIVASAN S.C./ MS RANITA YOGEESWARAN DATED THIS 4th DAY OF MAY 2022 -2Introduction The Honourable the Chief Justice Sundaresh Menon in exercise of his powers under Section 90 of the Legal Profession Act 1966 (""LPA"") appointed the Disciplinary Tribunal (""Tribunal"") on 5 July 2021to hear and investigate the matter against Ms Yeo Poh Tiang (""Respondent"") and submit its findings to the Chief Justice. 2 The Respondent is an advocate and solicitor of the Supreme Court who was admitted to the roll on 12 July 2006. a J These disciplinary proceedings arise from a complaint by Mdm Koh Hwee Miem (""Complainant"") against the Respondent, who was at all material times the Managing Director of Yeo & Associates LLC (""Firm""). 4 By a Notice of Disciplinary Tribunal Proceedings dated 7 July 2021, the Respondent was informed that Disciplinary Tribunal proceedings have been commenced against her and she was required to answer the allegations in the complaint and the statement of case which accompanied the said Notice. 5 The Law Society of Singapore (""Law Society"") was represented by Shumin Lin from M/s Drew & Napier LLC whilst the Respondent was represented by N. Sreenivasan SC, and Ranita Yogeeswaran from M/s Straits Law Practice LLC. Procedural History 6 These proceedings involve 2 charges for breaches of Rule 17(3) as well as Rule 5(2) of the Legal Profession (Professional Conduct) Rules 2015 (""Rules""), which amount to improper conduct or practice as an advocate and solicitor under Section 83(2Xb) of the LPA, with 2 altemative charges for misconduct unbefitting an advocate and solicitor under Section S3(2)(h) of the LPA. In essence, the l't Charge under Rule 17(3) of the Rules alleges that the Respondent failed to inform the Complainant that fees paid for services were charged on a non-refundable basis, while the 2nd Charge under Rule 5(2)(c) and (h) of the Rules alleges that the Respondent failed to provide/contact/instruct the a J Complainant in respect of the services after 22 days even though the services were represented as 7 oofast and expedient"". Pursuanl tu the tlircul.iurrs of this Triburral, the Defenus was filcd ul 1 1 August 2021, tlte Lists of Documents were filed on26 August 2021, the Affidavits of Evidence in Chiel Bundles of Documents and Bundles of Authorities were filed on 28 September 202I,the Opening Statements were filed on 14 October 2011 and the matter was scheduled for hearing from 20 to 22 October 2021. On the 1't day of the hearing, Counsel for the Law Society sought leave to amend the Statement of Case and in particular, to clarifir the elements of the 2 charges, and to separate the altemative charges. Counsel for the Respondent had no objections. The Tribunal granted leave for the amendments and the hearing was completed on the 2""d day after receiving testimony from the Complainant and the Respondent. Following the hearing and as directed by the Tribunal in consultation with the parties, the parties submitted and exchanged their respective written closing submissions on 2 December 2021 as well as written reply closing submissions on 23 December 2021. Background 8 The Firm owns and operates ""DivorceBureau@"" a website (WUirUdjyr:Ioelglgglf.gQ.n.sg) described as a ""Do-It-Yourself (DIY) Portal"" (o'Portal"") developed by the Respondent to facilitate and expedite uncontested divorces at lower cost. DivorceBureau@ Service (""DBS"") was the basic service to assist users with generating the necessary Court documents. The Portal offered the ""PLUS Service"" (also referred to as ""PLUSS"") to assist users with filing the Court papers and the ""Legal Advice Service"" (also referred to as ""LAS"") to provide a consultation with a ""senior family lawyer"". DBS costs 5$599, PLUSS costs 5$380 and LAS costs S$150. 9 On 12 February 2020, the Complainant opted for the DBS, PLUSS and LAS and paid the sum of S$1,129 to the Firm through the Portal. Thereafter, the Complainant did not complete the online forms and had no communication with the Firm and/or the -4Respondent until the Complainant requested a full refund on 5 March 2020, ie,22 days later. 10. On 6 March 2020, the Firm's staff replied to reject this request and despite the Complainant's appeal, the Firm maintained that the payment was ""non-refundable"". On 11 March 2020, there was further communication with the Complainant and the Firm's staff highlighted the disclaimer that the payment was ""considered fully utilised"" with access to the subsequent pages and extended this position beyond DBS to include PLUSS and LAS as well. l1 On 1 I March 2020, the Complainant attempted to contact the Respondent to no avail and replied to the Firm and Respondent via email. The Complainant called the Firm, but the staff was unwilling to discuss the matter fuither. On 12 March 2020, the Complainant and Respondent communicated via email. However, there was no amicable solution or resolution to this issue. 12. On 15 March 2020, the Complainant informed the Firm to stop work (if any) and the Respondent reiterated the previous position and the ""terms and conditions"" of the Portal. The Complaint 13. By way of a letter to the Law Society of Singapore dated 13 May 2020, the Complainant lodged the Complaint against the Respondent for: (a) acting in a way which was contrary to a legal practitioner's position by using intimidating language and accusing her of harassment when she repeated her request for a refund of fees for services which, from her point of view, had not been provided; (b) lacking honesty about the services covered by the fees which the Complainant had paid for, and for refusing to provide services which the Complainant had already paid for; and -5- (c) failing to act with reasonable diligence in the provision of services, as no documents were prepared and no appointment had been made for legal consultationo and the services were not completed by the time the Respondent requested a refund on 5 March 2020, which was 22 days after she paid for the services through the Portal. Law Society's Case 14. The Law Society took the position that the Complainant became a client of the Firm and the Respondent upon making payment for legal services (DBS, PLUSS and LAS) on 12 February 2020. The Law Society submitted that the purported disclaimers relied on by the Respondent: (i) did not negate the solicitor-client relationship, and (ii) did not adequately inform the Complainant that the legal fees were paid on a oonon-refundable"" basis. The Law Society further submitted there was a failure to act with reasonable diligence and competence and to provide timely advice since the Respondent did not contact the Complainant for 22 days and the Portal represented that the process would be 'ofast and easy"". The Tribunal notes that the Law Society has not proposed a particular sanction but highlighted relevant precedents that supported a reprimand for breach of Rule 17(3) and a fine for breach of Rule 5(2) of the Rules. The Tribunal understood the Law Society's position to be that there was no dishonesty and no cause of sufficient gravity for disciplinary action under Section 83 of the LPA. Respondent's Case 15. The Respondent contends there was no solicitor-client relationship with the Complainant because the Portal provided ""DIY services"" and sought to separate the distinct services. The Respondent further contends that the Complainant was a litigantin-person and that the purported disclaimers highlighted: (i) there was no solicitor-client relationship, and (ii) the payments were ""fully utilized"" upon access to the Portal pages. The Respondent explained that the Complainant would have been contacted after 30 days if the forms had not been submitted because the Portal allowed users to ""edit the online form for the next 30 days"" and that the Complainant did not request for PLUSS and LAS. The Tribunal 6notes that the Respondent has proposed a fine or reprimand if one or both charges are established. Tribunal's Determination 16. During the hearing, the Tribunal heard the testimony of the Complainant and the Respondent and after the hearing, the Tribunal has considered the written submissions and written reply submissions of the parties in arriving at its findings on the pertinent issues. From the outset, the Tribunal notes that the Charges do not include DBS and relate to PLUSS and LAS only. The Charges (as amended) are set out below. FIRST CHARGE T'hat you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") Iocated at I0lA Upper Cross Street #12-13, People's Park Centre, Singapore 058358, are charged that you had, on or around I 2 February 2020, breached Rule l7(3) of the Legal Profession (Professional Conduct) Rules, in that you hadfailed to inform Koh Hutee Miem that the fees which she paid on 12 February 2020 for the ""PLUS Service"" and ""Legal Advice Service"" were being charged on a non-refundable basis, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act. ALTERNATIVE FIRST CHARGE That you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") located at l0lA Upper Cross Street #12-13, People's Park Centre, Singapore 058358, are cltarged that you had, on or around l2 February 2020, failed to inform Koh Hwee Miem that thefees which she paid on 12 February 2020for the ""PLUS Service"" and ""Legal Advice Service"" were being charged on a non-refundable basis, and are thereby guilty of such misconduct unbefitting an advocate and solicitor as an -7 - fficer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. SECOND CHARGE That you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") located at I0lA Upper Cross Street #12-13, People's Park Centre, Singapore 058358, are charged thatyouhad, between I2 February 2020 and 5 March 2020, breached Rule 5(2)(c) and (h) of the Legal Profession (Professional Conduct) Rules, in that you hadfailed to provide tlte services which Koh Hwee Miem had paid.for on l2 February 2020, includingfiling of court documents in Court under the ""PLUS Service"", and providing legal advice under the ""Legal Advice Service"", ond that no document had beenfiled and no appointment had beenfixed with Koh Hwee Miem even after a period of 22 days had passed, despite the fact that the aforesaid services were stated to be fost and expedient; further, that you had failed to contact Koh Hwee Miem in respect of the services that had beenpaidfor on 12 February 2020 or instruct Koh Hwee Miem on how to avail herself of the qforesaid services, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act. ALTERNATIVE SECOND CHARGE That you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") located at I0lA Upper Cross Street #12-13, People.'s Park Centre, Singapore 058358, are charged thatyouhad, between 12 February 2020 and 5 March 2020, failed to provide the services which Koh Hwee Miem had paidfor on I2 February 2020, including /iling of court documents in Court under the ""PLUS Service"", and providing legal advice under the "" Legal Advice Service "" , and that no document had been filed and no appointment had beenfixed with Koh Hwee Miem even after a period of 22 days had passed, despite the foct that the aforesaid services were stated to be fast and -8expedient; .further, that you had failed to contact Koh Hwee Miem in respect of the services that had been paidfor on I2 February 2020 or instruct Koh Hwee Miem on how to avail herself of the aforesaid services, and are thereby guilty of such misconduct unbefitting an advocate and solicitor as an fficer of the Supreme Court or as a member of an honourable profession within the meaning of Section S3(2)(h) of the Legal Profession Act. 17. Based on the Portal and the available evidence, the Tribunal is satisfied that a solicitorclient relationship was established between the Complainant and the Respondent upon payment being made on 12 February 2020. There is no dispute that the DBS service was provided by and that the payment was received by the Firm, as a consequence of which these payments would constitute legal fees for legal services. On the facts, the Tribunal finds that the purported disclaimers do not negate the presence of a retainer and that the Complainant engaged the Firm and the Respondent via the Portal and paid for legal services. The Tribunal notes that the legal fees for PLUSS and LAS have not been refunded. 1't Charge - Rule 17(3) of the Rules 18. Rule 17(3)(a) of the Rules provides as follows: (3) A legal practitioner must - (a) inform his or her client of the basis on whichfees for professional services will be charged, and of the manner in which those fees and disbursements (f any) are to be paid by the client; 19. The Respondent places heavy reliance on 2 disclaimers, the first of which is referred to as ""the Page 180 Disclaimer"", which stated: ""... Clients are able to take as much time as they need to complete the forms. Thus, your payment is considered fully utilized when you access the subsequent pages for the paid service."" 9- The Page 180 Disclaimer can be found in Exhibit YPT-4 to the Respondent's affidavit of evidence-in-chief (""AEIC "") at p180. 20. The Page 180 Disclaimer, which is set out right before the Payment section on the oolnformations [sic] & Payment"" page, stated as follows: ""Divorcebureau.com.sg seel