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11 Discip Proceedings

11 Discip Proceedings

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Lecture 11 Disciplinary proceedings
ACTUAL MACHINERY:
Time restrictions \u2013 adherence
-
one of criticms of then discip process was tt law soc took long time to get committees to investigate
complaint; no of them took long time to deliver decisions
\ue000principles of nat justice apply as with every other tribunal
SECTION 1 \u2013 DISCIPLNARY PROCEDURE
-

s. 83(1) Legal Profession Act (Cap.161, 2001 Revised Edition): all advocates and solicitors shall be
\u201csubject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the
roll or suspended from practice for any period not exceeding 5 years or censured\u201d

-
lay persons are part of the Inquiry Panel
-
Disciplinary Committee: a practicing solicitor, a retired judge or senior practitioner, one legal officer
and one lay person
-
Findings can be made available to public
The Procedure under the Act:
\u2022
Flow chart on complaint procedure
Written Complaint from a member of public received by the Law Society
|
Complaint referred to the Council of the Law Society
|
Council will refer the Complaint to Chairman, Inquiry Panel
|

Chairman, Inquiry Panel appoints a two-man Review Committee to review complaint
received
|
Review Committee decides

|
|
or

|
Inquiry Committee to commence inquiry and
submit its findings and recommendation to the
Council

1.
COMPLAINTS AGAINST ADVOCATES & SOLICITORS
1.1
Complaints
Section 85
(1)Any complaint of the conduct of an advocate and solicitor shall in the first place be made to the Society
and the Council shall refer the complaint to the Chairman of the Inquiry Panel.

To dismiss complaint \u2013 Council must
accept decision and inform
complainant and lawyer of the
dismissal of the complaint

To refer complaint to Inquiry Committee for an
inquiry
-
Process : Complaint to Law Society\ue001 Council refers to Chairman of Inquiry Panel
-
Very impt: A \u201ccomplaint\u201d must be one touching upon the conduct of an advocate and solicitor
Howard E Cashin [1989] 3 MLC 129
Complaint was tt agremenet was partr fee but cashin had charged client more \u2013 client felt that there was
breach of agreement. Civil dispute.
*Held: (CA)
Not matter of any complaint which suffices to find the jurisdiction of the Disciplinary Committee
Court referred to Harman v Park [1880] 66 AB 323, 328, where Lord Selborne held that the words \u201ccomplaint
of the conduct\u201d must be taken to mean that there must be an \u201cimputation of personal misconduct\u201d on part of
person concerned
Here no misconduct and so her remedy lay in taking out civil suit against firm. Inq committee had no juris to
entertain the complaint
\ue000Complaint \u2013 a complaint that concerns a civil disputesimplic iter, unaccompanied by any allegation of
misconduct, does not constitute a \u2018complaint of the conduct\u2019 within s. 85(1): Re Cashin Howard [1989] 3
MLJ 129
Cashin - Facts:

The respondent was an advocate and solicitor of the Supreme Court and a senior partner of the law firm of
Murphy and Dunbar. In the present proceedings, an order nisi was made to discipline him under s 80 of the
Legal Profession Act (Cap 161) (the Act) and he was ordered to show cause why he should not be dealt with
accordingly. The facts as far as they were undisputed were as follows. The complainant instructed the
respondent to act for a company (the company) of which the complainant was, at all material times, a director
and principal shareholder. The respondent was instructed to resist a winding-up petition (the petition) that had
been presented against the company. The respondent accepted the instructions and assigned a legal assistant in
the firm to assist him in the matter. The petition against the company was dismissed. Later, the taxed party and
party costs which were awarded to the complainant were paid by the respondent`s law firm into the office
account.
The events that followed the dismissal of the petition were acutely in dispute. The complainant claimed that
the respondent had agreed to limit the costs payable by her to $25,000 to the respondent`s law firm. The
respondent denied that he had agreed to this and claimed that the agreement was that such costs would only be
limited if the petitioner (of the winding-up petition) was unable to bear the party and party costs awarded
against it. After that, the complainant wrote a letter, enclosing correspondence between herself and the
respondent`s law firm, to the Law Society describing the events that had occurred and sought the help of the
Society in resolving their dispute. Disciplinary proceedings against the respondent were started. He was
charged with breach of r 3 of the Solicitors` Accounts Rules 1967 by paying client`s money into the office
account, breach of s 109(1) of the Act in that he taxed party and party costs in excess of the agreed solicitor
and client costs, and the wrongful appropriation of party and party costs which lawfully belonged to the
complainant. The Disciplinary Committee (the Committee) hearing the matter determined that cause of
sufficient gravity existed against the respondent in respect of all three charges. The Committee concluded that
although the complainant`s letter to the Law Society did not expressly allege misconduct by the respondent,
due allowance should be made for the fact that it was written by a lay person. There was thus a complaint
under s 82(1) of the Act. The Committee also decided that each partner in the respondent`s law firm had a
joint responsibility to ensure that there was no breach of the Solicitors` Accounts Rules. As regards the second
charge, the Committee found that the complainant was a more credible witness than the respondent, and found
the respondent guilty of the charge. In relation to the third charge, the Committee decided that the party and
party costs which were appropriated to the office account wer e undoubtedly in accordance with normal book-
keeping practice, taken as profit for the year which was distributable as profit among the partners of the firm,
and there was no evidence from an accountant or auditor to prove the contrary.

Holdings:

Helddischarging the order nisi to show cause:
(1).A `complaint` meant an accusation of misconduct. A complaint that concerned a civil dispute simpliciter,
unaccompanied by any allegation of misconduct, did not constitute a `complaint of the conduct` within s 82(1)

of the Act.

(2).In the complainant`s letter to the Law Society, she made no allegation of impropriety or misconduct on the
part of the respondent. The letter merely sought guidance and help in the dispute with the respondent`s law
firm. Since the letter made reference to and enclosed an exchange of correspondence between the complainant
and the respondent`s law firm, it was necessary to examine these in some detail to see whether or not they

contained any allegation of misconduct against the respondent personally.
(3).The letters showed that there was a dispute between the complainant and the respondent`s law firm as to
the precise terms of the agreement that they had entered into regarding costs. There was no suggestion that the
respondent had ever intended to deprive the complainant of anything that might be due to her.
(4).This was a dispute which should be resolved in a civil court. A breach of contract simpliciter could not in
any way constitute an allegation of misconduct.
(5).The Committee hearing the matter took the approach that the complainant could not be expected to put her
allegations in legal language or to refer to the provisions of the Act. This, however, ignored the fact that the
complainant`s letter of complaint was drafted with the assistance of another advocate and solicitor. The
conclusion of the Committee was thus against the weight of evidence, and without foundation. There was
therefore no valid `complaint` against the respondent and the proceedings failed at the outset.
(6).The first charge against the respondent was a charge of a personal character, and related strictly to the
conduct of the respondent himself. It was agreed that at the time of the payment of the money into the office
account, the respondent was not in Singapore and had nothing to do with the payment.
(7).The Committee`s conclusion that there was joint responsibility for the payment failed to distinguish
between `joint and several responsibility`, a civil responsibility, on the one hand and a disciplinary
responsibility on the other. The exercise of disciplinary power was essentially punitive and penal and was
exercised in appropriate cases only where there was personal complicity by the solicitor charged. In certain
cases, the negligence of a solicitor in relation to a client account could amount to professional misconduct, `if
it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession`.
(8).In the present case, the Committee made no finding that the respondent was personally implicated in the
breach of the rules, and there was no evidential basis for such a finding. The first charge therefore failed.
(9).As regards the second charge, in deciding whether the Committee came to the correct finding that there
was an oral agreement between the respondent`s law firm and the complainant limiting solicitor and client
costs to $25,000, the whole of the evidence had to be examined to see if the evidence pointed to equal
probability of an agreement which was as the respondent claimed in his defence.
(10).The Committee`s findings were essentially matters of fact, but where it appeared from the evidence that
the wrong decision in fact has been reached, it could be reversed, due regard being had to the court`s
disadvantage in not seeing or hearing the witnesses.
(11).There was no dispute that there was an agreement respecting costs, the dispute relating solely to the terms
of the agreement. It was necessary to test the assessment of the Committee, on an objective litmus test, by
reference to a number of specific issues.
(12).The findings of the Committee on the second charge could not be sustained. Because of this decision, it
was unnecessary for the court to deal with the alternative submission.
(13).In a fundamental sense, the third charge was contingent upon the first charge. Since the respondent was
not personally implicated in the first charge, the person responsible for the appropriation under the second
charge was not the respondent. The Committee failed to appreciate that they had no basis for their inference.
In the absence of evidence from the firm`s accountant or a public accountant, it was not a matter on which the
Committee could properly infer that the appropriated money would, in any event, have been appropriated at a
later date by the respondent and his partners. The onus of proof lay throughout on the Law Society to prove
that wrongful appropriation took place. This onus was not discharged.

1. Council \u2013
\u2022
\u201c1st filter\u201d
\u2022
Cannot reject even frivolous claims
\u2022
As long as concerns conduct of advocate and solicitor
\u2022
May on its own motion refer any information touching upon conduct of advocate and solicitor to Chairman
of IC
\u2022
The council must inform the advocate and solicitor concerned of any complaint it refers to the Chairman of
the IC
2.Inquiry Committee \u2013 (previous position) \u2013 now no more
\u2022
Can reject frivolous claims
\u2022
Wee Soon Kim Anthony v Law Society
Wee Soon Kim Anthony v Law Society [2001] 2 SLR 145
Complainant lodged complainant

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