Professional Documents
Culture Documents
1. Overview
i. General Duty
ii. Specific Duties
a) Misleading Court by active misrepresentation
b) Misleading ct by non-disclosure of facts and law (passive)
c) Failure to comply with Court Order
d) Solicitor as material witness
e) Breach of undertaking to court
f) Use of improper words/ disrespect to court
g) Delays
h) Statements to the press/media
i) Conduct of court proceedings
j) Non-professional relationships, threat to duty to court.
k) Miscellaneous R68-71
Observations:
- Strong theme in recent judgments emphasising imptance of integrity, fact that this is noble profession, here to do justice ult,
and that at al times we as solicitors and members of bar owe high duty
- in partr –
- judgement of justice VK rajah may 2005 – Public trustee v by-product traders
justice VK Rajah had cutting words to say about lawyers involved in tt case
misconception tt lawyers are not meant to merely do what clients ask
we are duty obund to serve the eternal, immutable interest of truth and justice
sacred duty
overwhelming public interest in maintaining the dignity and honour of our profession
we shld uphold highest stds of our profession
- justice Andrew phang – law soc of sg v ahmad khalis
held that our profession is noble one. We belong to a long and noble profession
ult to serve ends of justice and fairness
courts and public rely on us to ensure that in every cse justice is doen
shld be no dichotomy bet ujustie as ideal and what happens in everyday practice
they are not just ideals but we shld strive for them to ensure tt they are achieve – not just woolly notions
many lawyers epitomise the highest ideals of profession – eg pro bono work (serving public where otherwise no
access to lawyers) eg those who sign up for assigned counsel scheme – to ensure that accused persons have best
possible defence. Not deprived simply because canot afford
ult, ethics goes to heart of legal practice and our profession
do unto others as u wld have others do unto u
o => will be only few in series of more upcoming suc decisions
Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] SGHC 143
- Facts:
o Estate matter in which the Respondent had advised R who was the eldest son of the deceased.
o There were 12 beneficiaries under the Estate.
o The other beneficiaries had asked the Respondent if they could appoint a co-administrator. The Respondent
informed them this would incurred additional costs but they did not have to sign a document renouncing their
claim to be coadministrators. However, they did in fact sign the renunciation document.
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o When the beneficiaries were asked to sign the consent document (dispensing with sureties to the
administration bond) they did not receive a proper explanation of its nature nor was the Respondent present to
witness its execution.
o R became the sole administrator.
o The Respondent then filed a transmission application causing R to become the sole registered proprietor of
the property (which was the principal asset of the estate).
o The Property was then mortgaged. The Respondent acted for R and the bank in the mortgage.
o Remaining beneficiaries were unaware that R had become sold registered proprietor and of the mortgage.
o The money from the mortgaged was used by R for his own purposes.
o R fell behind in his mortgage payments and the bank sought to foreclose – this was when the other
beneficiaries came to know of the mortgage.
o The Beneficiaries lodged a complaint with the Law Society against the Respondent.
o 4 charges under sections 83(2)(b) and (h) of the Legal Profession Act for grossly improper conduct in
discharge of his professional duty and conduct unbefitting an advocate and solicitor were preferred against the
Respondent. Only 3 charges were ultimately proceeded with.
(i) failure to advise remaining beneficiaries to seek independent legal advice on the appointment of
R as sole administrator of the Estate.
(ii) false declaration and acknowledgement in the attestation clause of the consent document.
(iii) subordination of the interests of the beneficiaries to the interests of R
- Court of 3 Judges found that –
the Respondent was guilty of charges (ii) and (iii) and suspended him from practice for a period of 2 years.
- very useful extract – advice given by senior judge to young members of profession
sir Thomas lan – guiding principels of conduct –
• only very highest conduct consistent with membership of profession
• clients interests are paramount but u shld never do or agree to do anything dishonest or dishonourable
even under pressure fr most valuable client
• shld consitently be frank with court, members of court
• where word pledged by yourself or by member of staff or team, shld honour that even at financial cost to
yourself – reputation is greatest asset sol can have, and when this is damaged, u damage the entire body of
profession
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57. If at any time before judgment is delivered in any case, an advocate and solicitor becomes aware that his
client has committed perjury or has otherwise been guilty of fraud upon the Court, the advocate and solicitor
—
(a) may apply for a discharge from acting further in the case; or
(b) if required to continue, shall conduct the case in such a manner that it would not perpetuate the perjury
or fraud.
Duty to cease to act
58. An advocate and solicitor shall cease to act for a client if —
(a) the client refuses to authorise him to make some disclosure to the Court which his duty to the Court
requires him to make;
(b) the advocate and solicitor having become aware during the course of a case of the existence of a
document which should have been but has not been disclosed on discovery, the client fails forthwith to
disclose it; or
(c) having come into possession of a document belonging to another party by some means other than the
normal and proper channels and having read it, he would thereby be embarrassed in the discharge of his
duties by the knowledge of the contents of the document.
Facts, arguments and allegations
59. An advocate and solicitor shall not contrive facts which will assist his client’s case or draft any
originating process, pleading, affidavit, witness statement or notice or grounds of appeal containing —
(a) any statement of fact or contention (as the case may be) which is not supported by his client or
instructions;
(b) any allegation of fraud unless he has clear instructions to make such allegation and has before him
reasonable credible material which as it stands establishes a prima facie case of fraud; or
(c) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in
substance according to his instructions the advocate and solicitor reasonably believes the witness would
give if the evidence contained in the affidavit or witness statement were being given orally.
- Rule 58:
a) Client’s refusal to authorize his counsel to make disclosure of a matter, which his duty to the Court
requires
b) Refusal make disclosure of a document
c) Possession of material whose contents will embarrass an advocate and solicitor
- Rule 59: not to contrive facts
- Rule 60:
a) Take personal responsibility of the conduct of proceedings
b) Not to allow personal opinion or feelings
c) Disclose to Court all relevant decisions
d) Not to make submissions contrary to the law
e) Not to concoct evidence or facts
f) Not to make allegations against witnesses
g) Have reasonable grounds to support an allegation
- Rule 61: not to make statements or make questions which are scandalous
- Rule 62: duty not to communicate with witness on his evidence
- Rule 63: duty not to communicate privately with a judge/the Court without communicating it to all other
interested parties
- Rule 64: duty not to accept instructions or continue to act in a case on which he is likely to be a witness
- Rule 65: cease acting because of personal relationship with a client or the Court
- Rule 66: no property in a witness
- Rule 67: Statements given to the press or media must not amount to a contempt of court or be calculated to
interfere with the fair trial
- Rule 68: payments allowed to be made by an advocate and solicitor to a witness
- Rule 69: in a letter of demand, a solicitor can only recover what is due under the law
- Rule 70: unless 48 hours notice is given
- first amendment is a change to the notice period from 48 hours to 2 clear days
1) second is that the ‘two clear days’ notice to be given to an advocate and solicitor is only applicable in 2
situations:
• firstly, before entering judgment in default of defence and
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• secondly, before setting a divorce petition down as uncontested as an answer has not been filed
within the prescribed time (Council’s Practice Direction)
2) Council has ruled that the two clear days’ notice can only be given after the lapse of the 14 days provided
by the relevant rules to file a defence o an answer and not earlier
3) Rule 70 does not apply in cases where the time limits are set by an order of court (see Rules 70(1) and (3))
4) Cannot require another advocate and solicitor to give 2 clear days’ notice before taking action for not
complying with an order of court
5) Undesirable practice in giving fellow advocates and solicitors notice after working hours and deeming
that the 48-hour notice period starts to run immediately thereafter
6) Provides that any notice given on a working day after 4pm or on a day other than a working day shall be
deemed to have been given the next working day (see Rule 70(2))
7) ‘working day’ is defined to exclude Saturday, Sunday or public holiday (see Rule 70(4))
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normal and proper channels and having read it, he would thereby be embarrassed in the discharge of his
duties by the knowledge of the contents of the document.
- solicitors qua officers of court have an absolute and overriding duty first and foremost to the court to serve
pubic interest by ensuring that there is proper and efficient administration of justice
- touchstone in Rules 60(c) and (e) is the knowledge of the advocate and solicitor of the relevant decisions,
legislative provisions, case law, etc that impinge on his/her submissions or propositions
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- read with the second half of R54 “justice, public interest and professional ethics”. This implied duty to the court to maintain
the above is vis-à-vis the duty to the client, and overrides (“so long as it does not conflict”) the duty to the client.
- Shaw & Shaw v Lim Hock Kim (No 2) [1958] 1 MLJ 129
Solicitor is under an obligation of frankness (to tell the truth). It is his duty to (i)be accurate in presentation of facts;
and (ii)call attention of ct to any law clearly against him.
“… an advocate should be fearless in carrying out the interest of his client, he is, as an officer of the Court under an
obligation of frankness and candour founding that confidence reposed by the Bench in the Bar. He [an advocate] is
also under obligation to be careful to display accuracy in his presentation of facts and it is his duty to call the
attention of the Court to any case or statute which is clearly against him. He wields the arms of a warrior and not
of the assassin.”
Note that this is a negative duty rather than a positive one. Hence the rules do not say that a solicitor has to offer to tell court
about a fatal fact or confession, only that he cannot do anything to mislead (R56), contrive facts(R59), or concoct facts in
court(R60).
1
The element of personal knowledge is an ingredient in R56, so it may be a defence against malpractice to say that one does not
know of the fatal fact. In the absence of other phrases such as “reasonably know”; and to deceive or mislead being serious
allegations of iniquity, it seems actual knowledge rather than constructive knowledge is required; although there may be enough
iniquity in Nelsonian knowledge for a breach of R56.
1
Hereinafter, s are IMHO – in my humble opinion.
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- The 1st limb (“shall not contrive facts”) overlaps with R56 and R60, but applies only to facts. In the light of the 2nd limb, it is
likely that this is usually used for written docs.
- The 2nd limb (“or draft any…. containing…”) goes into specific facets, but only applies to written arguments/documents
- (a), (b) and (c) explicitly give primacy to clients’ instructions. (i.e. the lawyer is a mere mouthpiece of the client). Note
however (b) also requires the lawyer to have “reasonable credible material” in support of fraud, since it is a serious
allegation.
- There is a fine line between telling that client that things must have happened in a certain way, where the solicitor is just
trying to jock the client’s memory; and helping client to invent facts to fill in blanks in his story. The latter is obviously
wrong.
Therefore the solicitor should keep clear documentary records of communications with client, just in case he needs prove
clients’ instructions or his reasonable belief.
Deception of Court
Deception of court amounts to criminal contempt: Coxe v Ohillips [1736] Lee temp Hard 237, affirmed in R v Weisz, ex p
Hector Mac Donald Ltd [1951] 2 KB 611.
Tara Rajaratnam v Datuk Jagindar Singh [ 1983] 2 MLJ 127, per Abdul Razak J:
- “a party to a fraud conducting his case so as intentionally to deceive the court and a solicitor deceiving the court, was
acting in contempt in the face of the court.”
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- Dr Leela Ratos v Anthony Ratos s/o Domingos Ratos [ 1977] 1 MLJ 704
Client wanted adjournmemt lawyer contrived excuses
Delib misleading conduct frowned upon by court
advocate sets out to mislead the Court into granting an adjournment.
Public Trustee and another v By Products Traders Pte Ltd and others [2005] 3 SLR 449
- Facts:
J’s solicitors, surreptitiously filed a Summons in Chambers for the payment out of a sum of $4,270,000 from the
moneys earlier paid in by the Public Trustee. Inexplicably, the application was not served on the solicitors for any
of the other interested parties, including the Public Trustee.
Although J’s solicitors were aware of the crucial facts and material circumstances, they nevertheless omitted to
bring them to the court’s attention. Had the Assistant Registrar been notified of the material and relevant facts (the
earlier unsuccessful garnishee application made against the Public Trustee, the findings of another Assistant
Registrar in an earlier application for default judgment, the other competing claims and the circumstances
necessitating the payment into court), she would not have sanctioned the payment out of court.
- estate involved – left large no of property
- public trustee appted to rep estate
- all in, 14 beneficiaries, of these, 6 of them represented by two, also parties to action
- disagreement bet some over who was entitled to sales proceeds
- Judith prakash J made order that PT entitled to sell, all proceeds to be paid in court, and no money to be paid out to
benef whtout leave of court
- This was done
- The two reps – they claimed 6/14 share of sales proceeds
With respect to this, diff claimants
Two reps claiming it
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- 4. when appeared before jstuice rajah again in application for benef money, these facts not told to court again in
frankness and openness tt monies paid out and no pt making such orders
- 5. what is troubling abt case is tt ult, when mnies paid out, JAK was bankrupt, real parties entitled to funds enver
received monies and wld never see it
- person in control of JAK himself a bankrupt
- see judgment extracts - Per V K Rajah J.
para 26 – All solicitors are officers of the court: see s 82(1) of the Legal Profession Act (Cap 161, 2001 Rev Ed).
The label “officer of the court” goes well beyond being a catchy or fancy turn of phrase. By definition it
presupposes and connotes that those so appointed have obligations and responsibilities in upholding the legal
framework (see my observations in Re Econ Corp Ltd (No 2) [2004] 2 SLR 264
One of most crucial duties is duty NOT TO MISLEAD THE COURT
o While sol expected to make all honest endeavours tofuther client’s cause, shld not mislead court on facts of law;
then entitled to make case most fav or adv to client
o Misleading or deceptive conduct cnabe passive or active or combi of both
Passiv when material facts concealed or economy with the truth
With braod spectrum of actibity, ptless to attempt to exhaustively define it
o Reputable badge of officer of court x be compromised on pretext tt acting oin cient’s best interest
Lawyers may be conflicted bet duty to client and to court on other
But usu clear demarcation when such tension arise – to court
o Conclusion – There is a common misconception among many a lay person that a solicitor, once engaged, becomes
the proverbial cat’s paw who is then duty-bound to ensure success on his client’s behalf by “hook or by crook”.
Nothing can be further from the truth. A solicitor is not a malleable tool who can be stretched or strained at will to
fulfil a client’s goal.
He is first and foremost a statutory officer of the court who has an obligation to discharge each and every
one of his duties within the parameters of the law and established standards which are nothing less than
sacrosanct.
In Rondel v. Worsley at 227, Lord Reid helpfully provided a succinct overview of the responsibilities of an
officer of the court: [A]s an officer of the court concerned in the administration of justice, he has an
overriding duty to the court, to the standards of his profession, and to the public, which may and often
does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.
Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or
witnesses for which there is no sufficient basis in the information in his possession, he must not withhold
authorities or documents which may tell against his clients but which the law or the standards of his
profession require him to produce.
The courts are legitimately entitled to expect solicitors appearing before them to be candid and
conscientious. The duty of candour warrants a solicitor, in the absence of any legitimate issues relating to
solicitor-client privilege, drawing to the court’s attention all material facts that may have a bearing on the
court’s determination of a matter if there is reason to believe that the court has not already been apprised
of them. In addition, solicitors must never mislead or deceive a court whether actively or passively.
That is not all. Solicitors are further expected and required to generally assist the court in its functions to
achieve justice. For example, solicitors are expected to draw the court’s attention to the existence of all
relevant adverse legal authorities, notwithstanding that the same authorities may prima facie undermine
their client’s case….
…It is axiomatic that the plea of acting in the best interests of a client can never condone any breach of
the obligation of candour that every solicitor owes to the court qua officer of the court.
Solicitors must exercise practical and deliberative wisdom and restraint in striking a prudent and
pragmatic balance between ethics and expediency.
Ethical rules and conventions can never exhaustively prescribe or proscribe standards of professional
conduct. Using established standards as basic guides, solicitors must draw on their own internalized moral
compasses to guide them through the myriad of conflicting priorities they have to regularly address and
make in practice.
As officers of the court, solicitors have to continuously, vigilantly and discerningly evaluate their
relationship with the court while pursuing their client’s interests…
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…In the final analysis, solicitors, as officers of the court, must in their dealings with the court,
acknowledge that their obligations to the court reign supreme, over and above their client’s and their own
interests…
...Solicitors must aid and assist, and never impair the court’s ability to discharge its impartial adjudicatory
responsibilities. They must recognize and affirm that the practice of law is not an amoral business geared
purely towards the pursuit and satisfaction of private ends.
o Rajah J – whether catalyst for actions was tt lawyer’s own bills not paid, and knew tt client cld nt pay
- The lawyer who had no objn to payment also referred to law soc
- See Rule 56 (above pg 2) again. Note however despite what it seems on the face to be a positive duty to tell the truth, this is
NOT so. Because of the paramouncy of solicitor/client privilege, a solicitor CANNOT offer to tell the court of his client’s
guilt.
- See also Rule 74 when defending accused persons. Solicitor “should” continue to act, but “shall not” set up case inconsistent
with confession.
i) Duty to cite or draw the court’s attention to all relevant decisions and legislative provisions
- The fact that authorities are against an advocate’s case is immaterial to the discharge of this duty.
- As an officer of the court he must tell the court of any law that he is aware of. This seems to be a lower standard to breach
than actual knowledge, as seen below when deliberately ignoring the section had costs implications. However, some
wrongfulness is still necessary.
- Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees [1921] 2 AC 66, per Viscount Finlay
“Neither the appellants nor the respondents, however, took their stand on this section [S23 Act of 1847]. On the
contrary, they have studiously ignored its existence…
It may be that this omission has brought about the entire litigation; certainly, I should think, it has brought about
this appeal. I therefore think that both parties should bear their own costs here and below.”
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- if case overruled, then don’t rely on it. Or if one part, then also mention other part
- I statute repealed, draw tt to court attention
- Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees (above)
- Abraham v Jutsun [1963] 1 WLR 658, 663, per Harman L.J.
“He [an advocate] is not guilty of misconduct simply because he takes a point which the tribunal holds to be
bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby
deceives the court.”
Lord Denning MR explained counsel’s duty as follows: “[It is an] advocate’s duty to take any point which he
believes to be fairly arguable on behalf of his client. An advocate is not to usurp the province of the judge. He is not
to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a
point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he
knowingly takes a bad point and thereby deceives the court.”
Note no duty to tell court about Client’s perjury or fraud. Privileged information! However see below for the corresponding
duty to discharge oneself in situations of extreme conflict.
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Note that these are serious breaches by the client, where a lawyer “shall” cease to act. Things that have to be disclosed in (a)
would seem to be restricted to legal matters in parts (i) and (iii) above; or of the narrow factual circumstances of (iv) above where
privilege doesn’t apply. (b) is a positive obligation which reflects the importance of documentary evidence viz the ease of
withholding them, and highlights the role of the solicitor in policing the process of discovery.
- Fair – we wield a lot of power, many times, press in gallery, if going to make adverse allegation against witness, may affect
his reputaotn and standing
- There is privilege of what goes on in court and witness has little recourse against you
- But namesand reputaotn and interest get affected for long time by what is said in court abt them
- so to ext tt going to make adverse remark, give him oppty in cross exam to say sth about it
- don’t just make allegation of fraud, dishonesty etc without giving him chance
(h) shall not suggest that a witness or other person is guilty of any crime, fraud or misconduct or attribute to another person the
crime or conduct of which his client is accused unless such allegations go to a matter in issue (including the credibility of the
witness) which is material to his client’s case and which appear to him to be supported by reasonable grounds.
Reqts:
- 1 Allegation must go to mater in issue
- 2. material to clent’s case
- 3. reasonable grds for making allegation
- so put urself in witness’s shoes – is it within bounds of fair play? If no grd to allege dishonesty fraud, infidelity etc, then
cannot do so
- will be in breach of rules
General:
- applies only to witnesses, and in the midst of court proceedings.
- (a) explicitly applies only to a speech in court, and is probably exemplified in the rule that you must “put” allegations to the
witness to bring it up again in closing submissions. This is also called the “rule in R v Dunn”. The Court should not be
misled at closing into thinking witness was challenged and conceded certain points, when he did not.
- (b) applies to any part of the proceedings, including cross-examination but probably not written submissions. This rule
protects non-parties from serious accusations, and prevents counsel from distracting the court from the main issues by
dragging non-parties into the picture, or trying to unduly influence the court’s assessment of witnesses.
- The test is part subjective(“appear to him”) and part objective(“reasonable grounds”).
note that these are probably a derivation of a lawyer’s general duty under R54 to uphold “interests of justice, public interest and
professional ethics”. This is because a lawyer owes no duty to a witness on the stand or third parties, but he does owe a duty to
the court to uphold justice, and instil confidence and respect in the court process.
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a solicitor who declined to represent his clients after the Court had refused his application for withdrawal was
not found to be in contempt of court.
Conditions that must be satisfied to be held for civil contempt for breach of injunction
- Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; PA Thomas & Co v Mould [1968] 2 QB
913.
Terms of injunction must be clear.
- Husson v Husson [1962] 3 All ER 1056.
Proper notice of the injunction is given to the alleged contemnor:
- Lee Lim Huat v Yusuf Khan bin Ghows Khan [1997] 2 MLJ 472
Injunction must be valid for the purposes of contempt.
“Dismissal of an action…depends upon the facts and circumstances of each case whether an interlocutory
injunction survives final judgment.”
- - MBf Holdings v Houng Hai Kong [1995] 1 MLJ 135, 144.
The proper course to obviate non-compliance is to apply for a variation or discharge of the injunction:
- - Disobedience of injunction is still a civil contempt even if the injunction should not have been ordered in the first place:
Isaacs v Robertson [1985] AC 97, Spokes v Banbury Board of Health [1865] LR 1 Eq 42, TO Thomas v Asia
Fishing Industry Pte Ltd [1977] 1 MLJ 151, 158
- Wee Choo Keong v MBf Holdings Bhd [1993]
went on appeal in [1995] 3 MLJ 549, in the KL Supreme Court.
Facts: lawyers charged with contempt of court due to deliberate evasion of service of court documents by law
firm.
per Wan Adnan FCJ, whether the court order should not have been issued was not relevant in contempt
proceedings, and only relevant in the setting aside of injunction proceedings. Until it was set aside, the court order
was valid and must be obeyed.
Even if the trial judge had allowed the appellants to proceed first with their application to set aside the court
order, and they had succeeded in setting it aside, this would not affect the culpability of the appellants for their
disobedience.
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Failure to obey orders for discovery or production of documents if the alleged contemnor is in de jure and de facto
possession of the documents in question:
b. Re Thompson, R v Woodward [1889] 5 TLR 601, R v Poplar Borough Council (No 2) [1922] 1 KB 95
Breach of prerogative writ:
c. CH Giles & Co Ltd v Morris [1972] 1 All ER 960
Breach of order for specific performance:
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letter to say that his client had discharged him and that on the afternoon of 29 April 1997, he faxed the court
staff another letter to explain that he had other important business to attend to and to request that the hearing
before the Chief Justice be refixed.
Held, committing the respondent to prison for seven days:
(1) Tan’s attempt to apologise for his conduct was sorely lacking in conviction. The court was unable to
accept his apology and explanation. Whilst he might indeed have had other matters to attend to on the
afternoon of 29 April 1997, he could easily have made a brief appearance in court to inform the court of his
other commitments and to ask for an adjournment. He failed to do so and instead, behaved as if it was his
prerogative to choose whether or not to comply with the court’s clear direction. His conduct was calculated to
lower the authority of the courts and went beyond mere discourtesy which could just have been referred to the
Law Society. It amounted to sheer, unmitigated contempt which the court must seize upon and punish.
(2) The court’s power to punish for contempt allowed it to deal with conduct adversely affected the
administration of justice. Courts in different jurisdictions may hold different ideas about the principles to be
adhered to in their administration of justice, and correspondingly about the sort of conduct which may be
inimical to the effective administration of justice. While the English courts had apparently decided a lawyer`s
failure to attend in court did not amount to contempt, their Scottish, Canadian and Malaysian counterparts
decided differently. Singapore courts could not blindly adopt the attitudes of the English courts but must ask
themselves what was important to them here in Singapore. In this case, the court was of the view that conduct
such as Tan’s, which evinced a contemptuous disregard for the judicial process and scandalised or otherwise
lowered the authority of the courts could not be tolerated. It interfered with the effective administration of
justice and amounted to contempt punishable by the courts
(2) An advocate and solicitor shall discharge himself from representing a client if it becomes apparent to the advocate and
solicitor that he is likely to be a witness on a material question of fact.
(3) In discharging himself, the advocate and solicitor shall take all reasonable steps to ensure that his client’s interest is not in any
way jeopardized.
- Note that many other jurisdictions are not so strict about this rule.
- Can a partner from the same firm take over? No. Probably will run into conflict situations if it is a partner in the same firm
with imputed knowledge, better to discharge completely.
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Material evidence
- Wong Chin Chong v Bhagwan Singh [1993] 3 MLJ 679.
The advocate’s evidence must be shown to be material before the court will deprive the other party of the benefit of
legal representation of his choice. If the evidence is as collateral facts, the witness is not a material witness.
Case Law
- R v. Secretary of State for India in Council, ex p Ezekiel English King’s Bench [1941] 2 KB 169, 175, per Humphreys J:
“A barrister may be briefed as counsel in a case. He should not act as counsel and witness in the same case.”
- Million Group Credit Sdn Bhd v Lee Shoo Khoon [1986] 1 MLJ 315.
The rules relating to conduct and etiquette in the profession quite clearly say that a solicitor should not appear as
such in a matter in which he has reason to believe that he will be a witness in respect of a material and disputed
question of fact.
affirmed in Abdul Halim bin Abdul Hanan v Pengarah Penjara, Taiping [1996] 4 MLJ 54
[Source: Frederic T. Horne, Cordery’s Law Relating to Solicitors, (8th Ed. 1988), Butterworths: London and Edinburgh, p. 318-9.]
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- In enforcing undertakings, the court is NOT guided by considerations of contract, but aims at securing honesty of conduct
in its officers: Re Grey [1892] 2 QB 440, Re A Solicitor, ex p Hales [1907] 2 KB 539; United Mining and Finance
Corpn Ltd v Becher [1910] 2 KB 296 at 304; on appeal [1911] 1 KB 840.
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However, before the hearing date of the application, Mr Marshall had handed to a Mr Round, a member of the
Secretariat of the International Press Institute, 7 sets of the affidavits as originally affirmed and filed.
Mr Round subsequently circulated these affidavits.
Mr Marshall was found guilty of breaching the professional undertaking that he had given to the Attorney
General and was suspended from practice for six months
Local examples
Improper language:
- TT Rajah [1973] 1 MLJ 199
The respondent, an advocate and solicitor, acted as counsel for several political detainees in 13 private summonses.
The conduct and words spoken by the respondent were held by the Court to be both disgraceful and dishonourable.
“? running dogs of the government ?”/ challenged defence counsel to fight/ ‘you coward! You want to fight, come!’
also made improper remarks on court – ‘ this court showed interest prejudice’
commtns uncalled for
The respondent was suspended from practice for two years.
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The appellant then made the comment that by refusing to reopen the appeal, the Court of Appeal “set the seal
upon dishonesty”. The judges had already retired from view and didn’t hear him, but opposing counsel complained
to Lawsoc.
Inquiry Committee held that the appellant’s conduct was offensively critical of the judges and imposed a penalty
of $250. H appealed up to Privy Council but lost.
Note the AGC is an essential pillar of our legal system and thus the integrity of the office is protected. The A-G like any judge
has also the power to refer a complaint to Lawsoc (LPA S 92)
Disrespect/Discourtesy to Court
- Question of whether failure by lawyer to attend court is contempt.
- Weston v Courts Administrator of the Central Criminal Court [1976] 2 All ER 875 (English CA); Izuora v
The Queen [1953] AC 327 (PC) = NO
Failure by a lawyer to attend in court when directed to do so did not amount to contempt. Such conduct might
amount to discourtesy or disobedience but it did not constitute contempt. In Weston, the court remarked that such
conduct should be referred to the Law Society instead.
- - CF Scottish courts - Muirhead v Douglas [1981] Crim LR 781), Canadian Courts - R v Hill (1976) DLR (3d) 621,
Malaysia - Lai Cheng Chong v PP [1993] 3 MLJ 147 = YES
4.1 Delay
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- Contempt of court if lawyer causes an adjournment of a trial without a reasonable basis. See Lai Cheng Chong v PP [1993]
3 MLJ 147.
- Lawyers are often faced with a dilemma when asked by the media to comment on a client’s case which is before the Court,
prior to the conclusion of the proceedings.
- Most prudent course is not to comment at all.
Note too that a lawyer is also to vet any statements his/her CLIENT makes to the media.
- Should not criticise or debate the evidence given by a witness – especially if the witness has not completed his or her
evidence – or any rulings made by the Court.
- Should certainly not speculate on the result.
- No objection to accurately report or repeat what was said in open court, unless the Court has made an order restricting
publication of any evidence given in Court.
- In order for you also to assist a journalist by clarifying who the parties are before the Court and to assist the journalist in
accurately quoting what was said in court (for example by reference to the transcript).
- Media releases and sub judice rule
- Justice should not just be done, but must be seen to be done. Image of the Court at stake.
- i.e. no coaching. Exception in (2) to manage case. Should not be seen having long lunches with client and discussing case,
especially in the middle of a long cross-examination.
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J) NON-PROFESSIONAL RELATIONSHIPS
Rule 65: Relationship with client or Court
65. An advocate and solicitor shall not appear before a Court in a matter where —
(a) by reason of his relationship with the client it would be difficult for the advocate and solicitor to maintain his professional
independence; or
(b) by reason of his relationship with the Court or a member thereof the impartial administration of justice might appear to be
prejudiced.
- impartiality and independence of lawyer as an officer of the court in question. BIAS threatens duty to the court.
- key word in (b) “appear”. Justice must be seen to be done. Classes of relationships? Note strict rule of bias in England in the
Pinochet line of cases, CF Singapore seems to take a laxer stance.
K) MISCELLANEOUS
- Note that this was an English Rule, but now they’ve changed it. Rule still exists in Singapore.
- Rationale was that lawyer has an incentive to lie; promotes champerty/floodgates of litigation.
- Respect for other lawyers respect for adversarial court system? (lecturer included these in this lecture, for the sake of
“completeness”)
Resource materials:
Legislation
- Evidence Act (Cap. 97)
- Legal Profession Act (Cap. 161)
- Legal Profession (Professional Conduct) Rules (Cap. 61, Rule 1)
- Legal Profession (Inadequate Professional Services omplaint Inquiry) Rules (Cap. 161, Rule 18)
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Books
- Tan Yock Lin, The Law of Advocates and Solicitors in Singapore and West Malaysia, (1998, 2nd Ed.), Butterworths Asia:
Singapore
- Frederic T. Horne, Cordery’s Law Relating to Solicitors, (1988, 8th Ed.), Butterworths: London and Edinburgh
- Nathan P (Ed.), Board of Legal Education Postgraduate Practical Law Course Manual Volume 1 Professional Practice,
(2005)
- David Eady and A.T Smith, Arlidge, Earl and Smith on Contempt, (1999, 2nd Ed.), London: Sweet & Maxwell
- Taylor N (Ed.), The Guide to the Professional Conduct of Solicitors, (1999, 8th Ed.) Law Society Publishing: London
- Halsbury’s Laws of England (4th Ed.) Vol.10, London: Butterworths
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