4. Lss Pdr Guide 2013 29594u

Law Society

Practice Directions and Rulings

Guide 2013

Preface Since publication by the Law Society of its Practice Directions, Rulings and Guidance Notes in 1989, the Council of the Law Society has continued issuing additional Practice Directions, Rulings and Guidance Notes on professional conduct and other matters. This compilation seeks to update the 1989 Practice Directions, Rulings and Guidance Notes, and provides a consolidation of the Council’s Practice Directions, Rulings and Guidance Notes that remain relevant today. During the course of compilation, major changes has since repealed Practice Directions, Rulings and Guidance Notes which have been superseded or are outdated. The 1989 Practice Directions, Rulings and Guidance Notes and other subsequent Practice Directions which have been retained (whether in their original or issue, and will be referred to as “The Law Society of Singapore’s Practice Directions and Rulings 2013, Paragraph [x]” or “LSS PDR 2013, Para [x]” in short. Similarly, Guidance Notes which have been retained also been renumbered in this current issue, and will be referred to as “The Law Society of Singapore’s Guidance Notes 2013, Paragraph [y]” or “LSS GN 2013, Para [y]” in short. For ’ ease of reference, this current issue will contain the following annexures: Annex A – Practice Directions and Rulings which have been repealed Annex B - Practice Directions and Rulings which Annex C – Guidance Notes which have been repealed Annex D Certain chapters in the Law Society of Singapore’s Practice Directions, Rulings and Guidance Notes 1989 that contain information, which is now available independently, have also been omitted from this current issue. Practice Directions from the Supreme Court and the Subordinate Courts which were previously contained in Chapter 2 can now be accessed via the Supreme Court’s and the Subordinate Courts’ respective websites. Practice Directions and Rulings regarding Conveyancing Practice, which were previously contained in Chapter 3 of the 1989 edition, can now be found in a separate compilation, titled the Law Society of Singapore’s Conveyancing Practice Directions and Rulings 2009, available for

from the Law Society’s ’ library. Practice Directions from various governmental authorities with respect to property matters, which were previously contained in Chapter 4, and those regarding general matters, which were previously contained in Chapter 5, can now be accessed from the websites of relevant governmental departments. Lastly, the current editions of the statutes included in the Appendix of the 1989 Practice Directions and Rulings, are now available online. These abbreviations are used in this compilation: Legal Profession Act (Cap. 161, Legal Profession (Professional

(Cap. 161, R 13, 2010 Rev. Ed. Legal Profession (Solicitors’

Rules of Court (Cap. 322, R 5, Advocate and Solicitor

Act

PCR

PR

SAR Rules of Court Solicitor

We would like to acknowledge the contribution of the team from the Representation and Law Reform Department and the assistance from various interns, Nigel Sim, Christina Liew, Clara Lim and Chua Cheng Yew, without whom the consolidation of this 2013 issue of Council’s Practice Directions, Rulings and Guidance Notes would not have been possible. It is hoped that this current issue will be a useful resource to all in maintaining a professional standard of practice. Michelle Woodworth Cordeiro Director, Representation & Law Reform Department 17 September 2013

Contents PDR 1989, Chapter 1, Paragraph 1 - Applications for Ad Hoc issions - Queen’s Counsel [Repealed] PDR 1989, Chapter 1, Paragraph 2 - ission of Queen’s Counsel [Repealed]

6 6 6 6

PDR 2013, Paragraph 12 - Vacating Dates Fixed for Hearing PDR 2013, Paragraph 13 - Request for vacating or adjournment of criminal cases in the

6 6 7 7 7 7 7 7 7 8 8 9 9 10

PDR 2013, Paragraph 14 - No Taking Over Brief Until Retainer Determined and Basis of Second

10

PDR 2013, Paragraph 7 - Requests for Interpreters PDR 1989, Chapter 1, Paragraph 10 - Service of Court Documents [Repealed] PDR 2013, Paragraph 9 - Fees for Court Attendance by Government Doctors/ Employees

10 10 10 10 11 11 11 11 11 12

[Repealed]

PDR 2013, Paragraph 25 - Breach of Undertaking in iralty Proceedings PDR 2013, Paragraph 26 - Bill of Costs - Objection Notation PDR 2013, Paragraph 28 - Acting for Both Petitioning Creditors and Provisional Liquidator

12 12 12 12 13 13 13

Pertaining to Same Transaction PDR 2013, Paragraph 31 - Acting for Both Debenture Holder of a Company and Receiver

1

14 15

Contents PDR 2013, Paragraph 33 - Acting Against a Public Authority PDR 2013, Paragraph 34 - Professional Secrecy & Privilege

PDR 1989, Chapter 1, Paragraph 28 - Communication by Counsel with Witnesses Subpoenaed by the Prosecution [Repealed]

PDR 1989, Chapter 1, Paragraph 32 - References on Other Firm’s Solicitors [Repealed]

PDR 2013, Paragraph 43 - Duty of Solicitor to Lay Information of Criminal Offence PDR 1989, Chapter 1, Paragraph 38 - Matrimonial Proceedings: Service on the Attorney-General [Repealed]

PDR 1989, Chapter 1, Paragraph 45 - Application for Particulars of Ownership of Motor Vehicles from Registrar of Vehicles [Repealed]

15 15 15 16 16 16 17 17 17 17 17 19 19 19 19 20 20 20 22 23 24 24 24

PDR 1989, Chapter 1, Paragraph 47 Application for Notes of Evidence in Part-Heard Cases [Repealed] PDR 1989, Chapter 1, Paragraph 48 - Syariah Court Hearings [Repealed] 24 PDR 1989, Chapter 1, Paragraph 50 - Claims by Third Party Vehicle Owners Handled by Solicitors 24 [Repealed] PDR 2013, Paragraph 49 - Payment of Cheques by Defendant Insurer to Plaintiff for Motor 24 Accident Claims 25 25 26 PDR 1989, Chapter 1, Paragraph 56 - Request for Further Arguments Before Judge/Registrar 26 [Repealed] PDR 1989, Chapter 1, Paragraph 57 - Counsel’s Fees [PDR/4/1988] [Repealed] 26 26 27 RUL/2/1989 - Interest Earned on Stakeholder Money [Repealed] 27 27 27 PDR 2013, Paragraph 57 - Sharing Of Fees Between Solicitors 28 28

2

Contents

PDR 2013, Paragraph 61 - Blog Postings and Media Comments PDR 2013, Paragraph 63 - Use of Debt Collectors for the Recovery of Legal Fees and Expenses PDR 2013, Paragraph 64 - Obtaining Evidence of a Solicitor’s Misconduct by Entrapment Or by Illegal Or Improper Means PDR 2013, Paragraph 65 - Warrant to Act, Letter of Engagement and Referrals from Third Parties

PDR 1989, Chapter 6, Paragraph 2 - Singapore Telephone Directory [Repealed] PDR 1989, Chapter 6, Paragraph 3 - Use of the Name of the Law Firm Following the Name of a Lawyer in Professional Publications, Conference Papers, Conferences or Seminars [Repealed] PDR 1989, Chapter 6, Paragraph 4 - ments in “Patent and Trade Marks Review” [Repealed] PDR 1989, Chapter 6, Paragraph 5 - Trade Marks & Patent Agents [Repealed]

30 30 31 32 35 35 36 40 41 41 41 41 41

PDR 1989, Chapter 6, Paragraph 7 -Photographs to the Press [Repealed] PDR 1989, Chapter 6, Paragraph 8 - Advertising - Press Interviews [Repealed] PDR 2013, Paragraph 67 - Publicity by Solicitors Through Public Appearances and Contributions

41 41 41

PDR 2013, Paragraph 68 - Correspondences to Potential Clients Where Solicitor is Permitted to

42 42

PDR 1989, Chapter 6, Paragraph 14 - General Rules on Advertising [Repealed] PDR 2013, Paragraph 72 - Greeting Cards PDR 1989, Chapter 6, Paragraph 16 - Chamber of Commerce [Repealed] PDR 1989, Chapter 6, Paragraph 17 - Legal Notes in the Law [Repealed] PDR 1989, Chapter 6, Paragraph 18 - Participation by Solicitors Acting for Banks in Seminars [Repealed] PDR 1989, Chapter 6, Paragraph 19 - Brochures [Repealed] PDR1989, Chapter 6, Paragraph 21- Free Legal Advice [Repealed] PDR 1989, Chapter 6, Paragraph 22 - Calling Cards - Clerks [Repealed] PDR 1989, Chapter 6, Paragraph 23 - Newsletter on Recent Legal Developments [Repealed]

PDR 2013, Paragraph 75 - Referrals/hyperlinking of websites PDR 2013, Paragraph 77 – Interest in a Public Authority PDR 1989, Chapter 7, Paragraph 2 - Unprofessional Conduct [Repealed] [Repealed]

3

43 44 44 44 44 44 44 44 44 44 44 44 45 45 46 47 47 47

Contents PDR 2013, Paragraph 79 - Monies Drawn on Client in Satisfaction of Solicitor’s Costs -

47 47

49 PDR 2013, Paragraph 81 - Executive Appointments and Engagement in Business, Trade or Calling 49

PDR 2013, Paragraph 85 - Quoting of References in Correspondence PDR 1989, Chapter 7, Paragraph 10 - Registration of Trade Marks in Sarawak [Repealed] PDR 2013, Paragraph 86 - Acknowledgement of Documents PDR 1989, Chapter 7, Paragraph 13 - Wearing of Wigs [Repealed]

Particulars [Repealed] PDR 1989, Chapter 7, Paragraph 16 - Disclosure of Information to Auditors [Repealed]

PDR 1989, Chapter 7, Paragraph 22 – Visiting Silks – Tax Liabiliy [Repealed] PDR 2013, Paragraph 94 - Representations Made by the Law Society

PDR 1989, Chapter 7, Paragraph 31 - Mentioning Cases [Repealed] PDR 1989, Chapter 7, Paragraph 33. - Firms’ Names [Repealed]

RUL/2/1996 - Legal Costs for the Preparation of a Statutory Declaration from a Vendor of a Property [Repealed] PDR 2013, Paragraph 102 - Solicitor on Record Not Entitled to Refuse Service of Documents [Reissued] PDR 2013, Paragraph 103 - Equity in Lieu of Fees PDR 2013, Paragraph 104 - Use of Credit Cards

4

52 52 52 52 52 52 52 52 52 54 54 54 54 54 55 55 55 58 59 59 60 60 60 60 61 61 61 61 61 62 62 62 62 62 63 65

Contents PDR 2013, Paragraph 105 - Appointment of a Solicitor or a Person Employed By a Solicitor to Act 66 PDR 2013, Paragraph 106 - Prevention of Money Laundering and the Funding of Terrorist Activities

67 80

Council’s Practice Direction 1 OF 2010 - Undertakings Required of a Law Practice under Section

PDR 1989, Chapter 7, Paragraph 25 - Sole Practitioners - Arrangements for Continuance of Practice PDR 1989, Chapter 7, Paragraph 26 - Status of Associates PDR 1989, Miscellaneous Section, Query 1 - ant Report Rules 1985 1989 PDR, Miscellaneous section, Query 2 - Salaried Partners

86 87 89

1989 PDR, Miscellaneous Section, Query 4 – Solicitors’ s Rules 1985 1989 PDR, Miscellaneous Section, Query 5 - Rule 7 of the Solicitors s Rules 1985 -

91 92 92 92 93 93

1989 PDR, Miscellaneous Section, Query 6 - Solicitors s Rules 1985 1989 PDR, Miscellaneous Section, Query 7 – Solicitors’ s Rules 1985

94 95

GN/1/1989 - Debt Collecting Demands for Costs [Repealed]

96 96 98

GN/1/2003 - Guidelines on Prevention of Money Laundering and the Funding of Terrorist Activities [Repealed] GN/2/2003 - Guidelines for the Appointment and Responsibilities of Assigned Counsel in Capital Cases [Repealed] GN 2013, Paragraph 2 - Providing Welfare Assistance to Clients GN 2013, Paragraph 3 - Storage of Documents in Electronic Form GN 2013, Paragraph 4 - Deposit of Moneys in the Client of a Law Practice GN 2013, Paragraph 5 - Clients’ Presence in Chamber Hearings

GN 2013, Paragraph 8 - Contents of Practice Training Contracts [Reissued] GN 2013, Paragraph 9 - Informing a Client of His Right to Taxation or Review of a Fee Agreement GN 2013, Paragraph 10 - Guidelines for Handling of Clients’ Files When a Solicitor Leaves a Law Practice to Practise in Another Law Practice GN 2013, Paragraph 11 - Arrangements for Practice Training Contracts / Relevant Legal Training Annex A – Practice Directions and Rulings Which have been Repealed Annex B Annex C – Guidance Notes Which have been Repealed Annex D

5

98 98 98 100 100 101 102 103 104 104 106

Professional Practice PDR 1989, ChAPteR 1, PARA. 1 APPLiCAtionS foR AD hoC iSSionS - Queen’S CounSeL available opportunity, the purported reason for refusal [RePeALeD] PDR 1989, ChAPteR 1 PARA. 2 - provides as follows:iSSion of Queen’S CounSeL “No instrument chargeable with duty shall be itted [RePeALeD]

in evidence for any purpose by any person having by

PDR 1989, ChAPteR 1, PARA. 3 - law or consent of parties authority to receive evidence, PRACtiSing CeRtifiCAte foR or shall be acted upon ed or authenticated by Queen’S CounSeL [RePeALeD] instrument is duly stamped.”

PDR 2013, PARAgRAPh 1 - APPLiCAtionS foR PuPiLS to APPeAR BefoRe A As a result of this representation, the Council made representations to the Registrar as well as the AttorneyJuDge oR RegiStRAR [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 4]

General, with a view to either establishing a practice whereby an undertaking from a solicitor would be amending the then section53 appropriately.

Act where a solicitor who is a supervising solicitor under Part II of the Act may apply to allow a practice trainee (who has completed not less than on behalf of the solicitor or the Singapore law practice in which the solicitor practises, before —

The Attorney-General has written to say that in his view the then section 53 has no application in the mentioned situation. This is because arrest documents are not in fact chargeable with stamp duty, but with Court fees as prescribed by the Rules of Court at

Subordinate Courts or a Deputy Registrar of the

This view was conveyed to the Registrar, and in consequence, the Registrar has now written to say that he will in future agree to accept an undertaking

to apply for bail. Former Chief Justice, Wee Chong Jin, has commented that it is a discourtesy for petitioners who apply appear in chambers not to attend on their applications, or if they are unable to attend for good reasons that a

unstamped documents, provided that these documents are stamped as soon as possible the following morning. of Court: Execution, etc., of warrant of arrest.]

PDR 2013, PARAgRAPh 3 - exChAnge of AuthoRitieS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 6]

Would of the Bar please note that whenever possible the supervising solicitor of a practice trainee should appear on these applications and if he is not able, then a senior colleague should attend.

Where a solicitor intends to rely on authorities at a hearing, he shall supply a copy of the authorities to his opponent before the hearing. Unless there is a prior agreement between solicitors

PDR 2013, PARAgRAPh 2 - out of hours on a time at which authorities are to be exchanged, [Formerly PDR 1989, Chapter 1, para. 5]

the solicitor is to supply a copy of the authorities to that:

short notice of a vessel’s arrival was received from encountered when arrest documents were presented

6

Professional Practice [Afternote:

appropriate reservation of right in his client’s Warrant to Act. This reservation could be to the effect that the solicitor may at any time discharge himself based on

Refer to: Practice Directions: Filing of documents and

Courts’ Practice Directions: Bundles of authorities

take reasonable care to avoid foreseeable harm to the client. Without a suitable reservation of right, a solicitor who obtains his discharge may well expose himself to a claim for damages in the event his withdrawal leads to the dismissal of his client’s claim or the recovery of judgment against his client when there is a valid defence. [Afternote: Refer to 2011 Guide P12 Paragraph 2]

PDR 2013, PARAgRAPh 4 - PRotRACteD ARguMentS in ChAMBeRS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 7] Solicitors appearing in Chambers who anticipate that their arguments would be substantial are reminded to inform the Court accordingly at the commencement of the hearing and/or to ask for their case to be stood down. Subject to the Court’s ruling, solicitors should, where possible, give priority to other solicitors making applications for adjournment or by consent. Solicitors are reminded to observe the above as an act of courtesy to other solicitors who may be waiting for their turn.

PDR 1989, ChAPteR 1, PARA. 8(C) - ChAnge of SoLiCitoRS AnD outStAnDing CoStS [RePeALeD] PDR 2013, PARAgRAPh 7 - ReQueStS foR inteRPReteRS The Registrar, Supreme Court, has drawn the Council’s attention to the fact that Counsel for the Defence in criminal cases has never in the past made a practice of informing the Supreme Court Registry of the dialects expected to be spoken by the accused and his/her witnesses, if any, with the result that

PDR 2013, PARAgRAPh 5 - fee AgReeMentS in WRiting [MoDifieD]

arrangements. In the interests of all parties concerned, it would be greatly appreciated if of the Bar who act as counsel for the Defence will in future give the Registry adequate notice of the dialects expected to be spoken by their clients and witnesses.

[Formerly PDR 1989, Chapter 1, para. 8(a)]

[Afternote:

Solicitors are advised that it is important to have the agreement on the fees reduced into writing. They should also take steps to explain to their clients the consequences of their failure to pay the agreed fees, and the right of the Counsel to apply to the Court for leave to withdraw from the proceedings if the agreement for his fees or expenses to be paid is breached by the client.

Refer to:

[Afternote: Refer to 2011 Guide P73 Paragraph 8]

and Practice Directions: Interpreters and translation.]


PDR 1989, ChAPteR 1, PARA. 10 - SeRviCe of CouRt DoCuMentS [RePeALeD]

PDR 2013, PARAgRAPh 6 - ReSeRvAtion of RightS in WARRAnt to ACt [MoDifieD]

PDR 2013, PARAgRAPh 8 - SeRviCe of SuBPoenAS [MoDifieD]

[Formerly PDR 1989, Chapter 1, para. 8(b)]

Service of Subpoenas on Witnesses

his retainer may well be averted by inserting an

7


Professional Practice Solicitors should not give short notices to witnesses to attend Court. In several cases, instant subpoenas have been served a day or two before the date of hearing, thus giving the witnesses concerned little time to make necessary arrangements. Such practice is deprecated and solicitors are reminded that it is essential in the interests of the good name and reputation of the profession that solicitors should show courtesy, consideration and fairness to witnesses and they should take positive steps to ensure that their hearing. [Afternote: Refer to 2011 Guide P101 Paragraph 1]

[Formerly PDR 1989, Chapter 1, para. 11(b)] The attention of the of the Bar is drawn to either as experts or because they have in their records material which may be relevant to the case in regard to which they have been so subpoenaed. In order to establish mutual co-operation and understanding between solicitors and Government subpoena, they should communicate with the Head instance, indicate the nature of the evidence required, and come to an amicable arrangement with him so that a subpoena may be issued for the attendance of the evidence required.

PDR 2013, PARAgRAPh 9 - feeS foR CouRt AttenDAnCe By goveRnMent DoCtoRS/ eMPLoyeeS [Formerly PDR 1989, Chapter 1, para. 12(a)] Letter dated 10th July 1986 from the Permanent your attention:“We have on several occasions received letters and telephone calls from lawyers asking for the basis and reasons for charging court attendance fees and under whose authority are the fees levied. The fees for court attendances are prescribed under Section 2 of the Fees Act and is published in the Government Gazette No. 5 dated 1st February 1985 - No. S. 38. These fees are for attendance by government employees in all courts in Singapore for private summons irrespective of whether attendances in Court are for criminal or civil cases. The fees are also chargeable if the government employees are present in court but are not called to testify. Yours faithfully Sd. Tan Tuong Ming Director of Medical Services”. [Afternote: Refer to: Fees Act

If solicitors adhere to this procedure, it will help to promote better understanding between Government ensuring the smooth running of the istration of justice. [Afternote:

Court Attendance and Preparation Fees” No. 1 of 2000.]

Refer to:

PDR 2013, PARAgRAPh 10 – ReSPonSiBiLity foR feeS [MoDifieD] [Formerly PDR 1989, Chapter 1, paras. 12(b) and 40] (a) Witnesses’ fee and expenses Where a solicitor calls a witness to give evidence on behalf of his client, he shall, before calling upon the witness, make it clear to the witness concerned that he will not be personally responsible for payment of the

8

Professional Practice or any such fees and expenses (in the case of other either satisfy himself that his client is willing and able to pay the witness’s expenses or, if he has no such assurance, obtain payment from his client in advance Where a solicitor directs a client to a foreign colleague, he is not responsible for the payment of the latter’s charges, but neither is he entitled to a share of the fee of the foreign colleague. (b) Amendment to Rule 52 PCR in 2001 [“Understanding the Recent Amendments to the Professional Conduct and Publicity Rules”, Singapore Law Gazette, December 2001] “Rule 52 sets out the professional duty of a solicitor to meet the fees of professional agents when there is no agreement with the agent that he look to the client of the solicitor for payment of his fees. The amendment to r 52 in 2001 is a major change. The Ethics Committee agreed with the view of the Council that the Law Society should not continue to hold its professionally liable for the fees of professional agents they engage on their clients’ behalf when there is no reciprocal professional obligation imposed by other professional bodies. The amended rule only requires a solicitor to be for the fees of a fellow solicitor and a foreign lawyer but only in jurisdictions where there are reciprocal obligations. [Society’s Note: A solicitor is therefore under no obligation to pay the professional fees of another professional who is not a solicitor. The responsibility to pay the fees falls on the client. Only the Court can order a personal liability of costs against a solicitor and in absence of such order, one cannot assert any personal legal obligation against the solicitor.] Therefore, from 1 September 2001, a solicitor will not be liable for professional misconduct if he or she fails to meet the fees of a professional agent engaged on a client’s behalf. However, nothing in r 52 affects the solicitor’s contractual liability to such agents or third parties. It is always a good rule of practice to inform professional agents that their fees will be met by monies to to pay for the professional agent’s fees.” [Afternote: Refer to: 9

PDR 1989, PARAgRAPh 11 - WitneSSeS AttenDAnCeS in the SuBoRDinAte CouRtS [MoDifieD] [Formerly PDR 1989, Chapter 1, Para. 12(c)] are reminded to inform their witnesses not to turn up in Court if the civil cases they are involved in have been settled. There have been numerous occasions in the past where witnesses have waited have been settled and the solicitors concerned had not informed them that their attendances were not required.

PDR 2013, PARAgRAPh 12 - vACAting DAteS fixeD foR heARing [Formerly PDR 1989, Chapter 1, para 13(a)] A common but undesirable practice is whereby

a request that it should be vacated, without having Not only is it discourteous to make such a unilateral request, but it is also procedurally improper, since unless there is consent on the part of one’s opponent he is entitled to be heard before a hearing, attendance or appointment is vacated. Where such consent has been obtained and the matter is one which can be thereby vacated, Solicitor A’s letter should state the Solicitor B’s consent has been obtained, otherwise such a letter should not be written at all. [Afternote: Refer to: Practice Directions: Adjournment and vacation of

Practice Directions: Adjournment or vacation of

Professional Practice PDR 2013, PARAgRAPh 13 - ReQueSt foR vACAting oR ADJouRnMent of CRiMinAL CASeS in the SuBoRDinAte CouRtS [MoDifieD] Paragraphs 20 and 38 of the Subordinate Courts Practice Directions provides guidelines to what lawyers need to do when requesting to either vacate or adjourn a case. The Subordinate Courts have informed that in addition for criminal matters, all such request should be addressed to The Registrar, Subordinate Courts. The Subordinate Courts will also appreciate if lawyers could indicate the case reference and court number for easy reference as it will assist the Subordinate Courts in directing the request to the appropriate court.

PDR 2013, PARAgRAPh 14 - no tAking oveR BRief untiL RetAineR DeteRMineD AnD BASiS of SeConD oPinion [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 14] A solicitor should not act in a matter in place of another solicitor whom he knows has been retained until that retainer has been determined by the client. While a second solicitor may give a second opinion carefully consider whether he is in possession of

would not be proper for Solicitor A to discuss the matter further than that with his friend, as otherwise exists between his friend and Solicitor B would necessarily be disturbed. [Afternote: Refer to:

PDR 2013, PARAgRAPh 16 - SoLiCitoR on ReCoRD [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 15(b)] If in any civil proceeding the name of any solicitor appears on the record for any party, no other solicitor shall knowingly agree to act or continue to act for such party in such proceeding unless he has, in ignorance that such name so appears on the record, already agreed to act for such party and is unable by reason of circumstances or urgency or the like to refuse to act further to such party without exposing himself to a change of breach of professional duty. [Afternote: Refer to 2011 Guide P61, Paragraph 2]

[Afternote:

PDR 2013, PARAgRAPh 17 CoMMuniCAtion With CLientS of otheR SoLiCitoRS [MoDifieD]

Refer to:

[Formerly PDR 1989, Chapter 1, para. 15(c)] of the Bar are reminded that the general rule of etiquette about communicating with the clients of other solicitors is that a solicitor should not interview or otherwise communicate with the client of another solicitor, particularly in pending proceedings, unless:

Paragraph 1].

PDR 2013, PARAgRAPh 15 - ADviSing A fRienD Who iS A CLient of AnotheR SoLiCitoR [MoDifieD] If a friend of Solicitor A discusses a matter with him and Solicitor A is not acting for any party in the matter or is informed by his friend that the latter is represented by Solicitor B, it would be a gross discourtesy for Solicitor A to comment on the advice tendered by Solicitor B. However, it would not be improper for Solicitor A to suggest to his friend that he might wish to discuss certain aspects of the matter with Solicitor B in order that Solicitor B can advise him on those aspects of the matter. Nevertheless, it

prejudiced if the communication is delayed. [Afternote: Refer to Rule 48 of the PCR: No communication with represented clients.]

PDR 2013, PARAgRAPh 18 - DeALingS With the oPPoSing PARty [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 15(d)]

10

Professional Practice While a solicitor may correspond with the opposing party with the express approval of opposing party’s solicitor, he shall not go beyond what is necessary to achieve the purpose of the communication. A solicitor who accompanies his client to serve a notice on the opposing party should not act in a manner blatantly provoking hostility. [Afternote: Refer to 2011 Guide P77, Paragraph 2]

PDR 2013, PARAgRAPh 19 - DRAft oRDeRS of CouRt - DiSAgReeMent [MoDifieD]

showing the original and the amendment. One established method is to underline the additions and cross out the deletions but there may well be other appropriate methods. A draft should not be amended by delivering a new document altogether. Special circumstances may require a departure from the general practice, in which case an explanation should be given. Circumvention of these requirements the client for the client to deliver to the other solicitor or his client.

[Formerly PDR 1989, Chapter 1, para. 16]

[Afternote:

Disagreement

Refer to:

If an Order drawn by a solicitor is amended by the solicitor for any other party or parties and the solicitor who drew such Order or any other solicitor concerned is unwilling to accept the draft Order as amended, the party seeking to take out the Order shall within a reasonable time take out an appointment to settle the Order.

Court’s Practice Directions: Amendment of any

and

initialing Amendments Any solicitor making any amendment in an Order drawn by another solicitor shall initial such alteration. [Afternote: Refer to 2011 Guide P72, Paragraph 5]

PDR 2013, PARAgRAPh 20 - SoLiCitoRS’ CoRReSPonDenCe in SeALeD CoveRS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 17] Letters and all copies must be enclosed in sealed covers before they are despatched. Sending letters to other solicitors without the letters being enclosed in sealed covers is unsatisfactory as there is a potential risk of the contents of the letters which in most cases

PDR 1989, ChAPteR 1, PARA. 19(A) LienS in CRiMinAL PRoCeeDingS [RePeALeD] PDR 2013, PARAgRAPh 22 - CoPieS of DoCuMentS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 19(b)] It is advisable for the outgoing solicitor to make a copy of the documents before handling the matter over to the incoming solicitor. However, the outgoing solicitor must bear the costs of making copies of such documents as it is for his own protection in anticipation of future complications. [Afternote:

those to whom the letters are addressed.

Refer to:


PDR 2013, PARAgRAPh 21 - DRAft DoCuMentS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 18] A solicitor shall comply with the requirements of common courtesy in dealing with draft documents as follows: Ethics in Practice, “Client’s Termination of

11

Professional Practice Retainer and Transfer of Documents: Ethical Considerations” (Singapore Law Gazette,

[Afternote: Refer to 2011 Guide P184, Paragraph 1]

PDR 2013, PARAgRAPh 25 - BReACh of unDeRtAking in iRALty PDR 1989, ChAPteR 1, PARA. 19(C) PRoCeeDingS - PAPeRS to Be hAnDeD oveR on ChAnge of SoLiCitoR [RePeALeD] [Formerly PDR 1989, Chapter 1, Para. 22] PDR 2013, PARAgRAPh 23 - CounSeL’S The increasing frequency with which undertakings RoBeS AnD goWnS [MoDifieD] given by solicitors on the basis of which vessels are [Formerly PDR 1989, Chapter 1, para. 20] When appearing before a Judge or Registrar in Chambers, either in the Supreme or Subordinate Courts, male solicitors appearing should be dressed in an ordinary long-sleeved white shirt with a turndown collar, a tie of a subdued or sober colour, a dark jacket, dark tros and black or plain coloured shoes. Female solicitors should be dressed in a longsleeved white blouse high to the neck, a dark jacket, a dark skirt or dark tros and black or plain coloured shoes. Conspicuous jewellery or ornaments should not be worn. When appearing in open Court in the Supreme Court, a gown should be worn over the above described attire, and for Senior Counsels appearing in open Court in the Supreme Court, a gown in the design of those worn by Queen’s Counsel of England and Wales should be worn. However solicitors appearing in open Court in the Subordinate Courts need not be obliged to wear a gown. [Afternote: Refer to:

arrested and detained in iralty proceedings and security guard’s expenses incurred have not been honoured has been brought to the Council’s attention by the Sheriff, Supreme Court, Singapore. A solicitor should not give an undertaking which he is unable to implement personally. It would be easy for the Sheriff to institute proceedings to enforce the undertakings. Apart from being exposed to legal proceedings, solicitors should also bear in mind that a breach of undertaking is a serious breach of proceedings. Solicitors are therefore requested to ensure that cover security guard’s expenses before giving such undertakings. Failure to do so will mean that the solicitor must honour the undertaking personally and failing that, face the consequence of not only being sued by the Sheriff but also having to answer for professional misconduct. [Afternote: Refer to:

and 17 of the Supreme Court’s Practice Directions:

PDR 2013, PARAgRAPh 26 - BiLL of CoStS - oBJeCtion notAtion PDR 2013, PARAgRAPh 24 - WoRk Done By An unAuthoRiSeD PeRSon [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 21] A solicitor should not assist unauthorised persons who are not employed by his law practice to commit a breach of section 33 of the Act by merely g or “lending his name” to documents prepared by such unauthorised persons, including but not limited to documents relating to the incorporation or formation of companies.

[Formerly PDR 1989, Chapter 1, Para. 23] Objection to items in a bill of costs shall be explained by marginal notes, or by abbreviations showing the nature of the objections, e.g. “q” for quantum, “p” for principle, and so on. [Afternote: Refer to:

12

Professional Practice Courts’ Practice Directions: Objections, Form 49

The Council is of the view that the use of offensive solicitor.

Practice Directions: Objections, Form 19 of Appendix A].

PDR 2013, PARAgRAPh 27 LetteRS thReAtening CRiMinAL PRoCeeDingS/ offenSive LetteRS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 24(a)-(d)]

letters containing threats of criminal proceedings to coerce the other party to act in accordance with the solicitor’s demands or into making a statement in favour of his client’s case. The use of insulting and threatening language are neither in the interests of the client nor conducive to the maintenance of the good name of the profession. [Afternote: Refer to 2011 Guide P92, Paragraph 1, P93, Paragraph 1]

his clients “may consider lodging a report with the police with the view of the arrest of the drawer of the dishonoured cheque for the offence under the Penal Code”. Although a criminal offence may for bringing pressure to bear for the recovery of a civil debt, irrespective of who the defendant is. in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance, for example, to compel a statement or to sign a written statement despatched to him. However, it is not improper for a solicitor to communicate with a party requiring him to comply with a particular order, enment or statutory provision, and state that failure to do so will result in that party being liable to an offence or penalty. It is further permissible for the solicitor to identify the offence or penalty under reference. offensive language used by solicitors to of the public and to clients of other solicitors.

PDR 2013, PARAgRAPh 28 - ACting foR Both Petitioning CReDitoRS AnD PRoviSionAL LiQuiDAtoR [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 25(a)] creditors and the Court appoints a provisional liquidator for the company pending the outcome of the winding-up petition, it is undesirable for the solicitors for the petitioning creditors to act also on behalf of the provisional liquidator. [Afternote: Refer to:

dispute

We reproduce below the relevant text of page 81 of “A Guide to the Professional Conduct of Solicitors”:-

PDR 2013, PARAgRAPh 29 - ConfLiCt of inteReSt – ACting AgAinSt foRMeR CLient in LtitigAtion PeRtAining to SAMe tRAnSACtion

“Writing Offensive Letters

[Formerly PDR 1989, Chapter 1, para 25(b)]

solicitor to write offensive letters to clients of other solicitors, to Government departments and to the public.

A member has queried as to whether a solicitor who has acted for both the Mortgagor and the Mortgagee in the same transaction, can subsequently act for the Mortgagee in an action against the Mortgagor for default of payment under the Mortgage. The query was raised in relation to a transaction where the separate

The use of insulting language and indulging in acrimonious correspondence are neither in the interests of the client nor conducive to the maintenance of the good name of the profession.”

13

had been completed before the event of default.

Professional Practice The Council feels that in view of the fact that a

the Practice Circular No. 17 of the Law Society dated

the following advice:

which stated inter alia “A solicitor previously acting for the mortgagor and mortgagee should refrain from acting for either parties in litigation pertaining to the same transaction irrespective of whether the loan has been fully disbursed. The member has replied to “C’ explaining that the aforesaid Practice Circular was

A solicitor who has previously acted for both the Mortgagor and Mortgagee should refrain from acting for either of them in litigation pertaining to the same transaction irrespective of whether -

and has been perfected. [Afternote: Refer to:

PDR 2013, PARAgRAPh 30 - ConfLiCt of inteReSt MoRtgAgoR/ MoRtgAgee [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 25(c)] the following problem namely his clients had granted banking facilities to Mr A and Mr B previously. The banking facilities were secured by a mortgage of a property. The subject property had since been disposed of long ago by A & B. Notwithstanding the discharge of the mortgage of the aforesaid property, there was still an outstanding sum of money remaining due from A & B under their general balance of with his clients.

acting for either of them in litigation pertaining to the mortgage transaction and not in his case where the claim is based on the outstanding balance of the current between the Plaintiffs and “A”. Albeit that the current had been secured by a mortgage of a property in which the member acted against the Judgment. The Council had replied stating that in the circumstances described in his said letter, the Council to act for the Bank in the recovery proceedings, notwithstanding the fact that he had previously acted for the mortgagor and mortgagee in the securing of the banking facilities by a mortgage of the mortgagor’s property. There was no general rule that a Solicitor who had acted for some person either before or after litigation began cannot in any case act for the opposite mischief was result from the Solicitor so acting. [Afternote: Refer to:

His clients had instructed him to commence legal action against the said “A” only and accordingly the sum of $2,577.86 together with interest was claimed.

and others [2011] 1 SLR 663 (“Vorobiev Nikolay on the approach taken by the Court in determining whether there is a breach of Rule 31 PCR.

The Plaintiffs then obtained Judgment by way of summary judgment under Order 14 of the Rules of the Subordinate Courts against “A” up to the date of Judgement obtained, no objection was made by

is potentially relevant to whether the two matters in question are considered “same or related” under Rule 31 PCR, it is important to note that even if may still consider the two matters to be “related” if they involved the same asset, liability, transaction or legal dispute (see: Vorobiev Nikolay at [25]”].

of interest in respect of him acting on behalf of the Plaintiffs in the matter. There had been no stay of execution of the Judgment obtained by the Plaintiffs. bankruptcy proceedings against “A”. He had now received a fax letter from “C” drawing his attention to

14

Professional Practice PDR 2013, PARAgRAPh 31 - ACting foR Both DeBentuRe hoLDeR of A CoMPAny AnD ReCeiveR APPointeD By the hoLDeR [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 25(d)] It is not objectionable in principle for a receiver to use the same solicitor that acts for the appointer, the debenture holder. The receiver is almost invariably a public ant who should be able to identify interest between the company that he represents then the receiver should use different solicitors. This holder, and the solicitors can in such a situation be expected to inform the receiver acc ordingly and advise that he engages different solicitors.

PDR 2013, PARAgRAPh 33 - ACting AgAinSt A PuBLiC AuthoRity [Formerly PDR 1989, Chapter 7, para. 1] As a general rule, a solicitor who is a member of a public authority or any partner of or assistant employed by such solicitor should not be professionally engaged against such authority in any proceedings to which such authority is a party or in any matter in which such authority is directly interested. If exceptional circumstances justify any departure from this general rule it is the duty of the solicitor to ensure that the interests of the authority are effectively protected. [Afternote: Refer to 2011 Guide P33 Paragraph 5]

[Afternote:

PDR 2013, PARAgRAPh 34 PRofeSSionAL SeCReCy & PRiviLege

Refer to:

[Formerly PDR 1989, Chapter 1, para. 26(a)] All oral or written communications are privileged, whether they be letters, deeds, bills of costs, entries, statements, or any other communications made to the solicitor in the normal course of professional employment including information obtained by him in collecting evidence on behalf of a client.

PDR 2013, PARAgRAPh 32 - ACting foR Both CoMPLAinAnt AnD ACCuSeD [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 25(e)] When a solicitor has been retained by the complainant to act for him in a criminal case, the solicitor cannot subsequently represent the accused person in his defence in the same case, notwithstanding that the of the police report and did not nothing further for the complainant. [Afternote: Refer to: 15

The privilege applies to communications whether they are made directly or indirectly to the solicitor by his client, provided they are made to him in his professional capacity and in the legitimate course of his professional employment, even though they do not relate to a cause in progress or even in contemplation at the time the information is communicated. Privileged information concerning conveyancing transactions is in the same class as privileged information in other cases, No privilege attaches to the following classes of information:nature.

Professional Practice the fact that the client executed a particular Deed, or that the solicitor witnessed that Deed. solicitor to repeat to a third party.

question had in reply to the Comptroller maintained that “the secrecy of communication between solicitor and client is one of the cardinal principles on which the present system of the istration of justice in this country is founded.” The Council agrees with the stand taken by the abovementioned solicitor, and if any member of the

communications are not privileged as between these parties, if they had been made to the solicitor in his common capacity. furtherance of a fraud or crime, notwithstanding the fact that the solicitor might not have been aware of the criminal or fraudulent purpose at the time the communications were made. However, this does not apply to communications made to a solicitor for the purpose of a defence in criminal as long as they are not made in furtherance of a criminal purpose. The privilege is not the solicitor’s but the client’s and accordingly the client can restrain the solicitor from making disclosure or he can waive the privilege. Until the client has waived the privilege, it is the solicitor’s duty, if he is requested to make disclosure, to claim the privilege. The duration of the privilege is forever. [Afternote: Refer to Evidence Act (Cap. 97, 1997 Rev.

from the Comptroller of Income Tax, he is invited to refer the matter to the Council for guidance.

PDR 2013, PARAgRAPh 36 CoMMuniCAtion With foRMeR CLient [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 27] As between of the profession, one’s word should be one’s bond and should be accepted as such by the other solicitors unless there is strong ground to doubt the integrity of that solicitor. In normal circumstances, it should not be necessary before parting with money or property or document of a former client to the new solicitor that he has instructed to act for him. It is improper for a former solicitor to communicate with the client who has left him which would amount to a breach of rule 48 of the PCR, even if the communication is only with the view has written to that solicitor.

PDR 2013, PARAgRAPh 35 - ReQueSt [Afternote: Refer to 2011 Guide P77, Paragraph 1] foR infoRMAtion [MoDifieD] PDR 1989, ChAPteR 1, PARA. 28 CoMMuniCAtion By CounSeL With The Comptroller of Income Tax had previously called WitneSSeS SuBPoenAeD By the upon a member of the Bar to supply certain particulars PRoSeCution [RePeALeD] [Formerly PDR 1989, Chapter 1, para. 26(b)]

relating to the purchase of certain immovable properties in respect of which the solicitor in question was acting for the purchaser.

[Society’s Note: Refer to:

The request of the Comptroller of Income Tax was and had refused to supply the information on the ground that solicitors are prohibited by section 128 of the from disclosing any communication made to him in the course and for the purpose of his employment. The Comptroller had not itted the correctness of the stand taken by the solicitor, but he had for the time being ceased to pursue his request. The solicitor in

Practice for the Conduct of Criminal Proceedings. Paragraph 16 of Code reads:“Prosecutors and Defence Counsel may interview any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by another party to the proceedings, except that if the Prosecutor or

16

Professional Practice Defence Counsel is aware that the witness has been called or issued a subpoena to appear in court by the other party to the proceedings, he shall inform the Defence Counsel or the Prosecutor, as the case may be, of his intention to interview the witness. A witness shall be deemed to be called upon exchange of lists of witnesses in which his/her name appears, or in such other manner as the Court deems appropriate. A Defence Counsel may also take statements from a witness during the interview, if the witness consents.]”

Refer to:

act if he is a witness” (Singapore Law Gazette,

PDR 2013, PARAgRAPh 37 PRofeSSionAL PDR 2013, PARAgRAPh 39 - PunCtuALity ConfeRenCe [MoDifieD] foR CouRt heARingS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 29]


When a solicitor seeks a professional conference with his colleague, he shall call on the solicitor from whom it is sought, irrespective of whether the solicitor seeking the conference is senior in call or not. When the appointment has been made, the solicitor concerned should ensure, that as a matter of courtesy, his call is attended to promptly.

The Council would like to stress that all should be punctual for all Court hearings. Council also suggests that make the appropriate estimation for lengths of adjournments in order to assist in the general istration of the Court’s time.

[Afternote:

[Afternote: Refer to:

Refer to:

Practice Directions: Attendance of solicitors in and

PDR 2013, PARAgRAPh 38 - SoLiCitoRS AS WitneSSeS [MoDifieD]

Courts’ Practice Directions: Attendance of solicitors in Court].

PDR 1989, ChAPteR 1, PARA. 32 RefeRenCeS on otheR fiRM’S A solicitor shall not appear in Court or the Chambers SoLiCitoRS [RePeALeD] [Formerly PDR 1989, Chapter 1, para. 30]

in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he should discharge himself and in so doing, take all reasonable steps to ensure that he does not jeopardise his client’s interests. A solicitor shall not appear before an Appellate Tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in the Court below. Nothing contained in this Practice Direction shall formal or undisputed facts in matters in which he acts or appears. [Afternote:

17

PDR 2013, PARAgRAPh 40 - enteRing JuDgeMent By DefAuLt - 2 WoRking DAyS’ notiCe [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 33(a)-(c)]

(a) Rule 70 PCR [Council’s Practice Direction, Singapore Law Gazette, May 2001] Rule 70 PCR is applicable when judgment in default of defence is to be entered against a party or when a divorce petition is to be set down as uncontested solicitor on record, judgment cannot be entered in default of defence nor the petition set down as uncontested, without giving the other solicitor the 48

Professional Practice hour written notice required by the PCR. [Society’s Note: The notice period was amended to two working days under rule 70 PCR wef 1 September 2001.]

working day after 4pm or on a day other than a working day shall be deemed to have been given the

Rule 70 was not intended to be applicable in any other event when judgment can be entered by default or otherwise. In particular, it was not intended to apply in instances when judgment is being entered for a failure of a party to comply with Orders of Court.

(c) giving notice to a Litigant-in-Person

The Council has requested the Ethics Committee to re-draft r 70 to remove any doubt on its application. PCR, which was added in 2001.]

Rule 70 PCR does not require a solicitor to give two working days’ notice to a litigant-in-person.

(d) Judgment in Default of Appearance is to be entered

(b) Amendments to Rule 70 PCR in 2001 [“Understanding the Recent Amendments to the Professional Conduct and Publicity Rules”, Singapore Law Gazette, December 2001] “There are several amendments to the previous r period from 48 hours to 2 working days. The second amendment is to make clear that the 2 working days’ notice to be given to a solicitor is only applicable in

within the prescribed time. [Society’s Note: see Council’s Practice Direction on rule 70 PCR above.] ... [T]he Council has ruled that the 2 working days’ notice can only be given after the lapse of the 14 days answer and not earlier. The other amendments provide that r 70 does not apply in cases where the time limits are set by an cannot require another solicitor to give 2 working days’ notice before taking action for not complying with an Order of Court: for example, if a Banker’s guarantee is to be delivered within 14 days per an Order of Court but is not done, a solicitor is not required to give 2 working days’ notice after the 14th day in order to enter judgment in default. This is also the case in dealing with ‘unless’ orders. Further amendments to r 70 are meant to deal with the undesirable practice of some solicitors in giving fellow solicitors notice after working hours and deeming that the 48-hour notice period starts to run immediately thereafter. Council is of the view that such conduct is against the best traditions of the Bar and should not be encouraged. The rule now provides that any notice given on a

Rule 70 PCR does not apply where judgment in default of appearance is to be entered. Rule 70 PCR refers to solicitors “on record”. A solicitor is on record behalf of his client pursuant to the Rules of Court. It is a matter of each solicitor’s professional judgment whether he wishes to give such notice to the opposing party’s solicitor before entering judgment in default of appearance.

(e) Computation of “2 Working Days” (i) Notice given on a working day before 4pm If notice was given on a working day (say Tuesday, 20 would be deemed to have been given on Tuesday, 20 that default judgment cannot be entered until written notice of such intention to do so has been given and two working days have elapsed after service of such notice, the counting of the two working days begins November 2007. (ii) Notice given on a working day after 4pm If notice was given on a working day (say Tuesday, 20 would be deemed to be given on the next working day, Wednesday, 21 November 2007, based on rule 22 November 2007 and ends at midnight of Friday (a (iii) Notice given on a non-working day If notice was given on a non-working day (say Sunday, to be given on the next working day, Monday, 26 18

Professional Practice that the counting of the two working days begins on November 2007. [Afternote: Refer to 2011 Guide, P86-88]

to petition for the divorce of her husband discovers that the husband was guilty of having committed the offence of bigamy. The solicitor sought guidance whether he was bound to lay criminal information against the husband before proceeding with the divorce suit.

guidance: The solicitor was under no obligation to PDR 2013, PARAgRAPh 41 - extenSion lay information of bigamy having been committed of tiMe [MoDifieD] by the husband before proceeding with the divorce [Formerly PDR 1989, Chapter 1, para. 34] If an extension of time within which to plead be given to a party he shall, if so required, accept short notice of trial at the next sittings of the Court as if the pleading had been delivered in the time ordinarily limited for its delivery without any extension, as the party allowing the extension would have been in a position to have given notice of trial for such sittings.

petition. However, in the divorce petition, the solicitor was bound to disclose all the facts within his knowledge. [Afternote: Refer to 2011 Guide P97-98, Paragraph 2]

PDR 2013, PARAgRAPh 44 - nonRefunDABLe DePoSit oR RetAineR [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 37(a)]

[Afternote:

A. Requirement for Client to Pay a nonrefundable Deposit or retainer

Refer to:

The Council has received several complaints about engaged in contentious work requiring their clients to pay a “non-refundable deposit or retainer.” etc., of time].

PDR 2013, PARAgRAPh 42 CoMMiSSioneR foR oAthS: AtteStAtion By An ASSoCiAte [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 35] It has come to the attention of the Council that there

Act provided that “Subject to the provisions of any other written law, a solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of his costs in respect of contentious business done or to be done by the solicitor, either by a gross sum, or otherwise, and at either the same rate as or a greater or a less rate than that at which he would otherwise be

as Commissioner for Oaths in a matter in which a

that “Every such agreement shall be signed by the client and shall be subject to the provisions and

The Council is of the view that in order to avoid any

makes it clear that every question respecting such agreement as is referred to in Section 111 may be examined and determined and the agreement may be

Associate should not act as Commissioner of Oaths whom he is associated is acting as solicitor, and vice versa. This is in accordance with the current rule 9 of the Commissioner for Oaths Rules 1997.

the of the agreement are deemed by the court or judge to be unfair or unreasonable, the agreement may the court or a judge to order the whole or any portion of the amount received by a solicitor to be repaid by him on such and conditions as to the court or judge seem just.

PDR 2013, PARAgRAPh 43 - Duty of SoLiCitoR to LAy infoRMAtion of The Council emphasises that section 111 of the Act CRiMinAL offenCe [Formerly PDR 1989, Chapter 1, para. 36]

facts: A solicitor acting for a woman who wishes 19

does not give solicitors a carte blanche to agree to an unreasonable fee and that it is well settled that overcharging a client whether in a bill of costs or otherwise may amount to professional misconduct.

Professional Practice B. entitlement to keep fees Collected as a non-refundable Deposit or retainer [Formerly PDR 1989, Chapter 1, para. 37(b)] The Council has noted that there may be instances where felt that they would be entitled to keep their fees collected as a non-refundable deposit or retainer irrespective of the amount of work done so long as clients agree to the arrangement. This is not so in all cases. It is recommended that note sections 111, 112 and 113 of the Act and be aware of the need to comply with them [Afternote: Refer to 2011 Guide P131, Paragraph 4]

notice of proceedings by the Plaintiff to the insurers as constituting notice to the Bureau for the purposes of the Motor Insurers’ Bureau Agreement to cover the possibility of the event referred to above occurring. However, in cases other than those provided in Clause by the Plaintiff must still be served on the Bureau and this requirement must be strictly complied with. of the Bar will however appreciate that the Bureau in making the aforesaid concession will be necessarily exposed to some risks. In particular, the Bureau will then not be able to know, in certain instances, whether a claim will come within its ambit until a demand is made to them by the Plaintiff’s solicitors to settle a judgment. We would therefore be grateful if you could ask of the Bar where they act for the Plaintiff not to obtain judgment, where they know the claim will come within the Bureau’s ambit, but to inform the Bureau and ascertain from

PDR 1989, ChAPteR 1, PARA. 38 MAtRiMoniAL PRoCeeDingS: SeRviCe on the AttoRney-geneRAL negotiating a settlement of the claim out of Court [RePeALeD] PDR 2013, PARAgRAPh 45 - notifiCAtion of PRoCeeDingS: MotoR inSuReRS BuReAu [Formerly PDR 1989, Chapter 1, para. 39] A copy of letter dated 23rd July, 1982, from the Secretary of the Motor Insurers’ Bureau of Singapore is reproduced for the information of of the Bar:Insurers’ Bureau Agreement. Notwithstanding the provisions of the aforesaid Clause, the Motor Insurers’ Bureau has been served each time proceedings are commenced, with notices of commencement of proceedings by the Plaintiff’s solicitors regardless of whether there was in force at the time of the accident a policy of insurance purporting to cover the use of the vehicle concerned. They have presumably done so as a precautionary measure in case the relevant insurance policy is found subsequently to be in some way ineffective.

or defend the action. Where of the Bar act for the Defendant in cases which come within our ambit, we would also be grateful if you would ask discontinue acting for the Defendant.”

PDR 2013, PARAgRAPh 46 - StoRAge AnD DeStRuCtion of DoCuMentS [MoDifieD] [Formerly PD/1/1999] This Practice Direction supersedes the Council’s Practice Direction published in the 1989 Publication, the Law Society’s Practice Direction & Rulings.

Return of Documents and Storage of files that belong to them once the retainer is terminated, subject to such rights as may arise by reason of the solicitor’s lien. wish to advise clients in writing immediately prior

In view of this, the Bureau has now decided as a matter of policy to accept that the notice of proceedings given by the Plaintiff to the insurers concerned be regarded also as a notice to the Bureau for the purposes of the Agreement in the event that the relevant insurance cover is found subsequently to be ineffective and where the Motor Insurers’ Bureau would consequently by involved. Could you therefore inform of the Bar that in future, the Bureau will accept the

concerned

20

if

they

require

any

Professional Practice Retention Period of Closed files

receipts to which income relates to be kept for 5 years from the relevant year of assessment. Companies Act (Cap 50,

are relevant considerations for determining retention periods.

general Considerations

minimum of 6 years from the time when the subject matter is wholly completed.

and other records that explain the transactions retained by the company for 5 years from completion of the relevant transaction or operation. years from completion of the relevant transaction.

Destruction of Documents Documents, in particular, original documents, such

particular transactions, and the likelihood of any claims arising to decide if further retention is appropriate.

with their clients. However must carefully consider the implications in each case, below.

should not be destroyed without the prior consent of the Owner of that document.

ownership of Documents For directions on ownership of documents, are referred to paragraphs 1-3 of the revised February Guidance Note on ownership, storage and destruction of documents, which is reproduced with the kind permission of the Law Society of England as an annexure to this practice direction.

Annexure time of the action or where judgment for should be retained for a minimum period of 6 years from the date on which the client would have

Guidance - ownership, storage and destruction of documents is terminated?

obtained. should also take into the relevant statutory provisions, some examples of which are set out below: Limitation Act (Cap. 163, negligence within 6 years from the date from when the cause of action accrued or 3 years from the date on which the Plaintiff knew or ought to have known the relevant facts, whichever is later, subject to an overriding time limit of 15 years under Section 24B. Goods and Services Tax Act related records to be kept for not less than 5 years, subject to the Comptroller agreeing to a shorter period. Income Tax Act (Cap 134,

21

documents which belong to you, some which belong to the client and possibly, others belonging to a third party. Documents in existence before the retainer, held by you as agent for and on behalf of the client or third party, must be dealt with in accordance with the instructions of the client or third party (subject to the retainer fall into four broad categories (see also Cordery on Solicitors). client and which have been paid for by the client, either directly or indirectly, belong to the client. Examples: instructions and briefs; most attendance letters received by you; copies of letters written by you to third parties if contained in the client’s case

Professional Practice There would appear to be a distinction between copies of letters written to the client (which may be retained by you) and copies of letter, written to third parties. or protection, the preparation of which is not regarded as an item chargeable against the client, belong to you. Examples: copies of letters written to the client: by you; copies of letters written by you to third par-

and borrower can be said to have a common interest, such as the deduction of title, the acquisition of a good title to the property and ancillary legal issues such as the use of the property. [Afternote: Refer to 2011 Guide P186-189]

PDR 2013, PARAgRAPh 47 - PhotoCoPy ChARgeS [MoDifieD] A. former Council’s Practice Direction 1 of 2003 February 2003.

.

September 1987 (former PDR

30 cents a sheet having regard to the costs involved in acquiring a machine.

retainer, the property in which was intended at the date of despatch to from the client to you, belong to you.

recommend a new standard charge, as there has

Examples: letters, authorities and instructions written or given to you by the client.

acquiring a machine.

The Council now

sheet where the law practice has its own machine.

course of the retainer and sent to you(other than at Example: receipts and vouchers for disbursements made by you on behalf of the client; medical and witness reports, counsel’s advice and opinion; letters received by you from third parties.

1 9 8 9 ,

B. former Council’s Practice Direction 2 of 2013 2013.

retainer?

15 February 2003 had set a new standard charge,

In the Law Society’s opinion the documents which

involved in acquiring a machine. The Council

clients tly. Such documents can only be disclosed to third parties with the consent of both or all of the clients and the original papers can only be given to

sheet where the law practice has its own machine.

client is entitled to a copy of the relevant documents at their own expense.

as to whether the standard photocopying charge of 15 cents applies in respect of per page printed or per piece of paper used.

separate retainers? This is usually the case where you have acted for the buyer/borrower and for the lender on a cotemporaneous purchase and mortgage, or for the borrower and for the new lender on are mortgage.

respect of per page printed. Therefore, in the case of double-sided printing, where one piece of paper is used to print two pages, the recommended photocopying charge is 30 cents.

the ownership of the various papers. There may, however, be documents which belong to the borrower but which the lender is nevertheless entitled to see as they relate to that part of your work where the lender 22

Professional Practice recommend the following photocopying charges for the respective paper sizes: Recommended Black and P a p e r Photocopying White or Colour Size Charge Per Page Photocopying 1.

2.

3.

4.

prisons.gov.sg/content/sps/default/connectwithus/ “Introduction A prisoner who is party to legal proceedings, civil or criminal, shall be given reasonable facilities to consult a lawyer.

Black And White Photocopying

A4


A3

$0.50

Before granting an interview to the lawyer, Heads of Institutions must satisfy themselves that the lawyer is actually representing the prisoner.

A1

$3.00

The interview shall take place within sight but not

Black And White Photocopying Black And White Photocopying

5.

Colour Photocopying

6.

Colour Photocopying

$0.15

A0

$5.00

A4

$1.00

A3

not be given in a case where the interview is conducted by the lawyer’s clerk or other persons authorised by the lawyer.

In every case, the lawyer must request for an interview in writing at least three clear days before the interview, or one clear day in urgent cases. However, lawyers may request for visits in compelling or exceptional circumstances by giving advance notice

$2.00

PDR 2013, PARAgRAPh 48 – PRoCeDuRe to viSit AnD inteRvieW CLientS in hours only. In his application, the lawyer shall state PRiSionS [MoDifieD] the following:-

A. visit to Prisons and Rehabilitation Centres [Formerly PDR 1989, Chapter 1, para. 43] of the Bar who visit their clients who are serving sentences in a Prison or undergoing treatment in a Rehabilitation Centre should access the Singapore Prisons Service’s website at http://www.prisons. gov.sg/content/sps/default/connectwithus/for_ legalBoard_of_committees.html for the procedure to book their interview time with inmates.

B. Requests by Lawyers to interview Prisioners

a defence witness, this fact shall be so stated. Heads of Institution shall in turn forward a copy of the lawyer’s letter to the AttorneyGeneral for his information.

[Formerly PDR 1989, Chapter 1, para. 44] The Singapore Prison Service has informed that the practices listed in the previous Prison Standing Order dated 17 July 1987 reproduced below are still largely valid today and in practice. A consistent set of visit instructions can be found on the Singapore Prisons Internet concerning visits request (see: http://www.

23

rejected in the following cases:-

instructions from the prisoner with regard to prison offences or incidents in the prison involving the prisoner.

Professional Practice In every case where an interview is granted, the lawyer shall be asked to note the following:signature must be shown to the Prison Authorities before the prisoner is allowed to

Practice Directions: Absence from Court on medical grounds].

PDR 1989, ChAPteR 1, PARA. 47 APPLiCAtion foR noteS of eviDenCe in PARt-heARD CASeS [RePeALeD] [Society’s Note: Refer to Forms 56 and 59 of Appendix B of the Subordinate Courts’ Practice Directions]

PDR 1989, ChAPteR 1, PARA. 48 - SyARiAh CouRt heARingS [RePeALeD] the duration of or terminate the interview at any time in the interest of the prisoner. The photocopying of documents brought in by lawyers to their clients should be carried out discreetly. Heads of Institution should exercise discretion in ascertaining which documents to photocopy. Examples of such documents which merit photocopying are those concerning transfer and disposal of properties, shares and monies, the granting of powers of attorney etc. (especially if the prisoner involved is convicted under the Companies Act [currently Cap. 50, 2006 be photocopied only if there is suspicion of illegal purpose or fraud committed as spelt out in section 128 of the Evidence Act [currently Cap. 97, 1997 Rev. Ed. Sing].

PDR 1989, ChAPteR 1, PARA. 50 - CLAiMS By thiRD PARty vehiCLe oWneRS hAnDLeD By SoLiCitoRS [RePeALeD] [Society’s Note: Refer to Appendix FA of the Subordinate Courts Practice Directions: The PreAction Protocol for Non-Injury Motor Accident Cases which states at paragraph 7.1 that after all the relevant information and documents have been exchanged, the parties should negotiate with a view to settling the matter at the earliest opportunity.]

PDR 2013, PARAgRAPh 49 - PAyMent of CheQueS By DefenDAnt inSuReR to PLAintiff foR MotoR ACCiDent CLAiMS [Formerly Council’s Practice Direction 3 of 2012]

A record of the interview shall be made in the Application Sheet of the prisoner’s Nominal Roll.

The approval to a lawyer’s request to interview a prisoner shall be conveyed in the form [originally attached] in this Order.”

1. This Practice Direction takes effect on 25 September 2012. 2. This Practice Direction sets out the proper practice for solicitors where, upon settlement of a motor accident claim, the Defendant insurer would be required to make payment to the Plaintiff for the insurance proceeds, party-and-party costs and disbursements.

PDR 1989, ChAPteR 1, PARA. 45 - 3. The Council is of the view that it is proper practice APPLiCAtion foR PARtiCuLARS of for a solicitor acting for the Plaintiff (“Plaintiff’s oWneRShiP of MotoR vehiCLeS fRoM RegiStRAR of vehiCLeS settlement of the claim, request the Defendant [RePeALeD] insurer to issue a cheque for insurance proceeds, party-and-party costs and disbursements in favour of the Plaintiff’s Solicitor’s law practice, if the Plaintiff’s Solicitor has instructions from the Plaintiff to do so and has the authority to receive payment on behalf of the Plaintiff.

PDR 1989, ChAPteR 1, PARA. 46 MeDiCAL CeRtifiCAteS [RePeALeD] [Society’s Note: Refer to: Practice Directions: Absence from Court on

4. Where the Defendant insurer chooses to issue the cheque addressed to the Plaintiff, instead of the Plaintiff’s Solicitor’s law practice (regardless of whether a request in paragraph 3 above has

24

Professional Practice otherwise instructed, request the Defendant insurer to issue a replacement cheque in favour of the Plaintiff’s Solicitor’s law practice, or to issue separate cheques in favour of the Plaintiff and the Plaintiff’s Solicitor’s law practice respectively. It would however be improper for the Plaintiff’s Solicitor to reject outright a cheque made directly payable by the Defendant insurer to the Plaintiff or threaten the Defendant insurer with execution. 5. This Practice Direction supersedes the Council’s Practice Direction on “Payment of Cheques” which was found at paragraph 51 of Chapter 1 of the Council’s Practice Directions and Ruling 1989 and reproduced in the Law Society’s Guide to Professional Conduct for Advocates and 6. For the avoidance of doubt, this Practice Direction is only for the reference of practising of the Law Society and is not to be relied upon by third parties.

PDR 2013, PARAgRAPh 50 - AtteStAtion of DoCuMentS [MoDifieD]

PDR 2013, PARAgRAPh 51 -ALLegAtionS AgAinSt AnotheR SoLiCitoR in AffiDAvitS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 54]

A. Rationale of Rule 71 PCR The purpose of rule 71 of the PCR is to ensure that a opportunity to provide the Court a full and balanced picture of the allegation made against the solicitor in to the proceedings would not have had an opportunity proceedings would be given the right to respond to After the solicitor gives his reply, the alleging solicitor may then withdraw or modify his allegations. The reasons for including the solicitor’s answer in the

from the solicitor is to put the cart before the

[Formerly PDR 1989, Chapter 1, paras. 52 and 23]

a) Requirement for Signatories to Personally Appear before Solicitor Attesting to the Signature of Documents

reply, which will prompt the solicitor to write a

In a past complaint investigated by the Inquiry Committee, it was alleged that a solicitor had attested the signature of certain documents without the signatory having personally appeared before the solicitor. of the Society are warned of the dangers of this practice. who are Commissioners for Oaths are particularly advised to heed the warning.

opportunity not to pursue his allegations by

[“Allegations Against Fellow Solicitors”, Singapore Law Gazette, January 2000]

b) false Attestation of Documents

Rule 71 PCR does not apply:

solicitor’s reply.

B. When Rule 71 PCR does not Apply

False attestation of documents may amount to grossly improper conduct in the discharge of a solicitor’s professional duty and a breach of the Act. Solicitors should be mindful of the serious and obvious dangers of this practice. [Afternote: Refer to 2011 Guide P97, Paragraph 2] practising solicitor.

25

Professional Practice C. “Made Against Another Advocate and Solicitor”


[“Allegations Against Fellow Solicitors”, Singapore Law Gazette, January 2000] of the law practice [Society’s Note: in particular, one which goes towards the processes, oversight or unless the allegation is personal to the staff.

D. “opportunity to Answer the intended Allegations” [Ethics Committee Guidance: 8 March 2000]

PDR 1989, ChAPteR 1, PARA. 56 - ReQueSt foR fuRtheR ARguMentS BefoRe JuDge/RegiStRAR [RePeALeD]

Under rule 71 PCR, it is the solicitor’s duty to provide

[Society’s Note:

allegations against him to enable him to fully respond

Refer to: Practice Directions: Requests for further arguments

eg whether it would be necessary to forward all the 71 PCR.

e. Client’s Allegation to be “include[d] in an

Practice Directions: Requests for further arguments before the Judge or Registrar.]

[Ethics Quandary, Singapore Law Gazette, December 1999, page 12]

PDR 1989, ChAPteR 1, PARA. 57 CounSeL’S feeS [PDR/4/1988] [RePeALeD]

Where a client says in evidence in the course of crossexamination that his previous solicitor did not carry out his instructions diligently, there was no duty on the client’s current solicitor to call on the previous solicitor to give him an opportunity to refute any allegation made, because the allegations were not [Afternote: Refer to 2011 Guide P89 - 90]

PDR 2013, PARAgRAPh 52 - WAiting tiMe BefoRe PRoCeeDing to tAx BiLLS ex PARte [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 55] Solicitors shall extend their courtesy by waiting for a reasonable period of time for the solicitor on the other side to appear before proceeding for taxation. The practice of having bills taxed ex-parte should only be resorted to under exceptional circumstances. It is good etiquette to attempt to the other solicitor before proceeding to go ex-parte.

[Society’s Note: Refer to rule 52 of the PCR: Responsibility for fees.]

PDR 2013, PARAgRAPh 53 - ConfiRMing inStRuCtionS AnD keePing AttenDAnCe noteS [MoDifieD] [Formerly PDR 1989, Chapter 1, para. 58]

In cases where more than one client is involved, it would be advisable to send all correspondence to each of the clients separately.

2. Attendance notes Solicitors are required to maintain contemporaneous notes of their dealings with clients, even for routine matters, as this would be an exercise in precaution and prudence. The attendance notes will be of real assistance in clarifying matters and corroborating a solicitor’s testimony in the event of a dispute over what has transpired. Without these notes, the Court may draw an adverse inference against the lawyer’s 26

Professional Practice testimony of events. The Court has emphasised the need for attendance notes especially when a solicitor is dealing with multiple clients. [Afternote: Refer to 2011 Guide P22 Paragraph 1]

in liquidation of a debt only if the debtor’s solicitors guaranteed the payment. [Afternote: Refer to 2011 Guide P112-113, Paragraph 1 to 5]

PDR 2013, PARAgRAPh 54 - LetteRS of RuL/2/1989 - inteReSt eARneD on DeMAnD [MoDifieD] StAkehoLDeR Money [RePeALeD] [Formerly PDR 1989, Chapter 1, para. 59]

A. Simple Debt Where a solicitor is instructed to collect a simple debt, it is improper for the solicitor also to demand the costs of the letter which he sends to the debtor because at that stage it cannot be said that the costs of the letter are properly recoverable in law.

B. Settlement for Motor Accidents to the case where, for example, following a motor accident, there is correspondence between the solicitor for the insured or a third party and the insurers or their solicitors, resulting in an agreement by the insurers or the third party in arriving at the settlement.

C. Payment of Arrears under Mortgage Debt Where a solicitor acting for a mortgagee is instructed to demand payment of arrears due under the mortgage he must not, at the same time, demand payment by the mortgagor of the costs of that letter unless he explains that such costs can be added to the amount of the mortgage debt.

D. Settlement for Libel Where a creditor wrongly made a demand for the payment of a debt alleged to be due to him from a third party, who then consulted a solicitor, there is no professional objection to the solicitor for the third party writing to say that he would be prepared to advise his client to accept an apology for the libel provided his charges were paid.

e. Agreement for Payment by instalments and Costs There is no professional objection to a solicitor making arrangements on behalf of a creditor client for the payment of a simple contract debt or a judgment debt by instalments subject to the stipulation that the debtor shall pay the creditor’s solicitor’s costs. It is also not improper for a solicitor acting for a creditor to agree to accept payment by instalments 27

PDR 2013, PARAgRAPh 55 ChALLenging AnotheR SoLiCitoR on LAW SoCiety’S RuLingS [MoDifieD] [Formerly RUL/2/1991, 1991 Circular No. 7, July 1991] It is not proper conduct for a solicitor to challenge another solicitor who acts in accordance with a ruling made by the Law Society simply because the challenging solicitor does not agree with that ruling. The appropriate course would be for the challenging solicitor to take up the disputed ruling with the Society if he can. A solicitor who seeks a ruling from the Law Society can always write to the Law Society in the proper manner for a ruling without the consent of the other solicitor involved. The refusal of the other solicitor to agree to refer a matter to the Law Society for a ruling is in itself not improper conduct. However, the solicitor who refuses to agree to request the ruling is only preventing himself from putting forward his contentions to the Law Society and has to take the consequences of his actions. [Afternote: Refer to 2011 Guide, P73]

PDR 2013, PARAgRAPh 56 - ReLAtionS With otheR SoLiCitoRS [MoDifieD] [Formerly RUL/2/1994] A solicitor must at all times maintain his or her personal integrity and observe the requirements of good manners and courtesy towards other of the profession or their staff, no matter how bitter the feelings between clients. A solicitor must not behave in a manner which is acrimonious or offensive or otherwise in consistent with his or her position as a solicitor.

Professional Practice Likewise, a solicitor must not write offensive letters to of the profession, whatever the degree of bad feeling existing between the respective clients. [Afternote: Refer to:

In these situations, the solicitor continues to be the solicitor on record and engages the services of senior counsel to appear in court. The fees of the senior counsel may be separately agreed upon, or the fees charged to the client may be shared between the solicitor on record and the counsel appearing in court.

PDR 2013, PARAgRAPh 57 - ShARing of feeS BetWeen SoLiCitoRS

2. In all the three different situations mentioned above, the solicitor engaged by the client should consult and inform the latter that another solicitor will be handling the matter due to its complexity. The client’s consent should be obtained before the brief is referred to another solicitor. If consent is not obtained, the solicitor’s conduct will be open to query by the client and may be improper.

[Formerly Council’s Ruling 1 of 1996]

[Afternote: Refer to 2011 Guide, P125-126]

1. Increasing specialisation and the need to tap the experience of more senior solicitors has given rise to the question of sharing costs between specialist/ senior solicitors and the instructing solicitors.

PDR 2013, PARAgRAPh 58 - fee ARRAngeMentS With CLientS [MoDifieD]

The Council envisages three different situations in which this question may arise:

Where a solicitor needs to consult another solicitor who is either a specialist or more experienced member of the profession concerning some aspects of a case which he is unsure of or needs guidance on. In these instances, the solicitor may obtain an opinion, whether orally or in writing, from another solicitor who has been consulted and an appropriate fee may be agreed upon between the solicitor seeking and giving guidance. There is nothing improper in seeking this kind of assistance.

A solicitor referring a matter to another solicitor who may have better expertise and experience than the former solicitor. A mere referral should not result in any costs being demanded or expected by the solicitor referring the client to another solicitor. This would be tantamount to ‘brokering’ and should not be permitted or condoned. Therefore, the solicitor in question should not claim costs for a mere referral.

Where the solicitor retains the services of the counsel owing to seniority and specialist knowledge.

A. Propriety of an Agreement to Accept Payment of Solicitor and Client Costs only in the event of Success and Recovery by the Client of his fixed Party & Party Costs in the Case of a Judgment in Default f Appearance [Formerly Council’s Practice Direction 3 of 2004] 1. Council considered and deliberated on the ethical propriety of a member agreeing with clients to Party costs for judgments in default of appearance and payable upon the clients’ recovery of such costs. 2. Council also deliberated if it was ethical for a costs if clients do not recover legal costs from the Judgment Debtor. 3. Council has ruled that entering into such fee sharing arrangement will mean that a lawyer’s S olicitor’s & Client costs is effectively dependent on the recovery of Party & Party costs by a client and such conduct can amount to a breach of section 107 of the Act. [Afternote: Refer to 2011 Guide, P130]

B. fee Arrangements with Clients Judgments in Default of Appearance

for

[Formerly Council’s Practice Direction 4 of 2004]

28

Professional Practice 1. This Practice Direction takes effect on 6 December 2004. 2. Guidance to PD if a member agrees with his client to only charge solicitor and client costs (S & Party costs for judgments in default of appearance so long as payment S & C costs are not contingent upon the client’s recovery of his Party & Party costs from the judgment

agrees with his client to charge S and C Costs

similar to the guideline referred to in paragraph 2 herein as improper under Council’s Practice Directions 3 of 2004 and 4 of 2004 (both dated a solicitor acting for a client in obtaining a judgment in default of appearance or defence. 4. Council continues to be of the view that in any contentious matter, it is improper for solicitors to have an interest in the subject matter of the litigation or to purchase an interest of a client. Therefore, such a fee arrangement would result in any solicitor acting for the client being in breach of section 107 of the Act and Rule 37 of the PCR and liable for professional misconduct under

costs for judgments in default of appearance.

of the Act provides that a solicitor, like any other person, shall be subject to the law of maintenance and champerty.

applies equally to Party & Party costs for judgments in default of Defence.

[Society’s Note: Propriety of a Solicitor representing an impecunious client where fees or disbursements are likely to be recovered if the claim is successful:

C. ethical Propriety of fee Arrangements with Clients Where Payment of Solicitor 1. The above paragraphs should be read in light of the decision in Law Society of Singapore v Kurubalan and Client Costs & Disbursements is [2013] SGHC 135 Contingent on Recovery of Party and Party Costs & Disbursements [Formerly Council’s Practice Direction 2 of 2012] 1. This Practice Direction takes effect on 15 May 2012. 2. It has come to the attention of the Council that a client of a member has set the following guideline on the billing of solicitor and client costs: “solicitor and client costs & disbursements would be limited to whatever party & party costs & disbursements are recovered from the other party” and “in the event that no costs are recovered from the other party, solicitor & client costs will be waived & only disbursements billed.” 3. Council has taken the position that such a fee arrangement would be improper for the following reasons: of solicitor-and-client costs that is contingent on the amount of party-and-party costs recovered by a client would render a solicitor in breach of section 107 of the Act and Rule 37 of the PCR because the solicitor would have an interest in the subject matter of the litigation or be purchasing an

29

it would be permissible and even honourable for a Solicitor to act for an impecunious client in the knowledge that he would likely be able to recover his appropriate fees or disbursement if the client was successful in the claim and could pay him out of those proceeds or if there was a costs order obtained against the other side.

2. The judges in Kurubalan went on to explain that such an arrangement would not be caught by section 107 of the Act or Rule 37 of the PCR because it would not amount to acquiring an interest in the fruits of litigation. In such a case, the Solicitor is putting aside his usual desire to be assured that he will be paid his fees in the interests of ensuring that the client is not denied the opportunity to seek justice. There can be no wrong in a Solicitor taking on a matter even if, as a practical matter, he knows that the client is unlikely to be able to afford to pay his bill unless the claim is successful or a costs order is obtained. 3. The judges in Kurubalan took the view that the practice directions should not be read to apply to the impecunious litigant who would not otherwise be able to afford legal representation, as there is an overriding public interest in ensuring access to justice. However, the rules that proscribe champertous agreements are statutorily enacted

Professional Practice and lawyers who enter into champertous agreements can expect to face at least a substantial period of suspension. (Refer to Law Society of Singapore v Kurubalan s/o

in addition to the common law principles on 8. A locum solicitor must familiarize himself with the of the PCR described above so that he and the law practice that wishes to engage can him c an determine if he can be so engaged.

PDR 2013, PARAgRAPh 59 - CLient Practice to be Adopted before Accepting ConfiDentiALity AnD ConfLiCt of of engagement as a Locum Solicitor inteReSt foR LoCuM SoLiCitoRS [Formerly Council’s Practice Direction 1 of 2005] 1. This Practice Direction takes effect from 1 April 2005. 2. This Practice Direction must be read in conjunction with the Act and PCR which govern locum solicitors who have been issued with a locum 2 of the Act. 3. This Practice Direction sets out directions as for a locum solicitor and for member law practices who engage a locum solicitor. 4. For the avoidance of doubt, this Practice Direction will apply in addition to the Act and PCR.

5. As a locum solicitor can practise in more than one law practice at any one time, the need for a locum solicitor and the law practice engaging him to when a locum solicitor practises in several practices is essential. 6. Therefore a locum solicitor and the law practice that engages him must respect the of rule 24 of the PCR that prescribes that a solicitor shall not directly or indirectly -

9. A locum solicitor must, before acceptance of an e ngagement with a law practice, state the names of all law practices that had engaged him so that the practice and the locum solicitor may determine if the locum to be engaged may have acted or acts against a former or current client of the law practice. This way both parties can determine if

10. A locum solicitor, during the course of engagement, must advise each law practice that engages him of the names of all law practices that he proposes to be engaged as a locum solicitor so that the law practice and locum solicitor may determine if any resolved. [Afternote: Refer to 2011 Guide, P182-183]

PDR 2013, PARAgRAPh 60 - LiMitAtion of CiviL LiABiLity [MoDifieD] [Formerly Council’s Practice Direction 4 of 2007] 1. This Practice Direction takes effect from 5 October 2007. 2. Although it is not acceptable for solicitors to attempt to exclude by contract all liability to their clients, the Council has no objection, as a matter of conduct, to solicitors seeking to limit their liability provided that such limitation is not below the minimum level of cover required by the Legal Profession

3. The cover currently required by the Legal the client or as required by law or order of court.

Rules is set out in the Schedule therein, reproduced below for easy reference:

live issue for a locum solicitor for the same reasons n rules 25 to 31 of the PCR apply to locum solicitor

30

Professional Practice AMount of inSuRAnCe CoveR the requirement of reasonableness set out in section 11, namely that the contract term must be a fair and reasonable one having regard to the circumstances which were or ought reasonably to have been known to or in the contemplation of the parties when the contract was made.

1. For the purposes of the advocate and solicitor is or will be practising in —

corporation

For each and every claim in respect of civil liability incurred by that advocate and solicitor For each and every claim in respect of civil liability incurred by that advocate and solicitor — corporation has only one director

liability law partnership 2. For the purposes of

For each and every claim in respect of civil liability incurred by that advocate and solicitor For each and every claim in respect of civil liability incurred by the law corporation — corporation has only one director

$1 million

where a contractual term seeks to restrict liability to the requirement of reasonableness has been which the person seeking to impose it could expect to be available to him or her for the purpose of meeting the liability should it arise, and how far it was open to him or her to cover himself by insurance.

$1 million $2 million $2 million

such matters may need to be considered according to the law applicable. 5. Any limitation must be brought clearly to the attention of the client and be understood and accepted by him or her. 6. The client’s acceptance of the limitation should

PDR 2013, PARAgRAPh 61 - BLog PoStingS AnD MeDiA CoMMentS [Formerly Council’s Practice Direction 1 of 2009] $1 million

4. This principle is subject to the position in law. The following points should be noted: professional obligations cannot be limited. be overridden. In particular the courts will not enforce in the solicitor’s favour an unfair agreement with his or her client. in any agreement as to costs for contentious business that the solicitor shall not be liable for negligence, or that he or she shall be relieved from any responsibility to which he or she would otherwise be subject as a solicitor, is void.

by virtue of the Application of English

31

1. This Practice Direction takes effect on 1 May 2009. 2. The Council takes cognizance of the media attention that is often generated during the course of proceedings and the comments sought from representing the parties to those proceedings as well as blog postings or on-line journals of on those proceedings that may be accessible to the public. 3. The Council expects all to exercise proper discretion in such circumstances and to refrain from making inappropriate comments, improper disclosures or inaccurate statements. In this regard, should note the following points when making such public comments:

Professional Practice 3.4 To comply with the rules of professional

C. guidelines Committee

for

inquiries

to

ethics

[Formerly PD/2/2009] 3.5 To avoid comments that may prejudice matters sub judice or that may be in contempt

1. This Practice Direction takes effect on 7 July 2009.

3.6 To avoid adverse remarks on the conduct or character of the opposing party.

2. Part of the Ethics Committee’s function is to be a resource which the Law Society makes available to all to provide to them advice and guidance on ethical issues.

to standards imposed by the Act and the regulations made thereunder and in particular, a member of an honourable profession. [Afternote: Refer to 2011 Guide, P164]

PDR 2013, PARAgRAPh 62 - enQuiRieS to ReLevAnt CoMMittee [MoDifieD]

3. Requests by to the Law Society for advice or guidance from its Ethics Committee should comply with the following guidelines. The Ethics Committee reserves the right not to consider or to give any guidance on requests which do not follow the guidelines set out below. in writing to the Law Society Secretariat. Requests should not be submitted to the Chair of the Ethics Committee or to of the Committee individually.

A. enquiries to the relevant Sub-Committee [Formerly PDR 1989, Chapter 7, para. 36] It has come to the attention of the Council that have written letters of enquiries or for guidance from the Law Society or its Committee without disclosing that there are other relevant parties concerned with the question thereby obtaining an answer which did not take into the opposing views on the question.

of ethical matters which are not clearly dealt with by legislation (including subsidiary common law or ethical matters in respect of which there is some genuine ambiguity or no other available guidance.

The Council would like to remind who wish to enquire or require guidance from the Law Society or its Committees to extend a copy of the letter to any other party who may be involved in the issue or problem raised to enable the Society to consider any opposing views on the matter.

hypothetical – it must deal with a real ethical issue which has arisen or which it is reasonably expected will arise in the inquiring member’s own professional practice. inquiry and not a disguised complaint against another member. In particular, requests for guidance should not be used to malign, harass or pressurise opposing parties or counsel or to gain tactical advantage.

B. hypothetical Reference [Formerly PDR 1989, Chapter 7, para. 35] should be informed that the Council will not entertain any reference or request for a ruling in hypothetical cases or where the identities of the parties involved are not revealed.

respect of matters which should properly be dealt with either by the Court or between the parties.

A member may, if there is a need to do so, request Council not to disclose the identities of the parties to the Committee on Rules & Etiquette. In such an event, the Council reserves the right to disclose such names as it deems necessary to enable the Committee to properly determine the reference.

Ethics Committee’s consideration: facts, bearing in mind the need to observe

32

Professional Practice

the point such as legislation (including directions, text books, articles and cases, and which the inquirer is asking Committee to express its views.

the

obligations and bind or third parties with those rulings. Having said that, the Courts do give some weight to Ethics Committee’s guidance representing, as it does, the professional body’s view. The weight which will be given will depend to a large extent on the completeness and accuracy with which all relevant material has been placed before the Committee together with the request for guidance. Committee’s starting point is that all inquiries

another member or if the guidance sought has the potential to affect another member, the inquiring member should inform the other member of the intention to seek guidance from the Law Society and the letter to the Law Society seeking guidance should be copied to the other member. If the subject-matter of the inquiry has been the subject of correspondence between the inquiring member and the other member, the inquiring member should also provide Society.

inquiring member before issuing any guidance. Further, to the extent that third parties (including matter of the request for guidance, the Committee reserves the right with the information from those third parties. If not forthcoming or if the inquirer does not consent to the Committee seeking the relevant third parties, the Ethics Committee reserves the right not to provide guidance on the inquiry.

member. The Ethics Committee may publish anonymised versions of the inquiry and the guidance where the subject-matter of the request is one of general application or interest.

completed conduct (as opposed to future misconduct or criminal wrongdoing, the Ethics Committee may be under a duty to report that misconduct through the relevant channels. 4. The Committee’s advice or guidance is wellresearched and generally entails substantial consideration and discussion by Committee . The Committee aims to respond with a formal advice or guidance within three to six weeks from the date that the Committee accepts a request for guidance. Where an expedited response is necessary, the inquirer should make that clear in the inquiry. The Committee will then endeavour to furnish its ultimate advice or guidance as a matter of urgency and follow up with its reasons in a formal advice or guidance thereafter. 5. The Ethics Committee also welcomes input from about practical issues or suggestions for reform of the rules of ethics. [Afternote: Refer to 2011 Guide, P6-7]

Requests to the Conveyancing Practice Committee for guidance, Direction(s) or Rulings [Formerly PD/3/2013] 1. This Practice Direction takes effect on 7 May 2013.

functions of the Committee rulings. Neither the inquiring member nor any third party who may be affected by the subject-matter of the inquiry is bound by the guidance given by the Ethics Committee. Only the Courts can provide rulings on the scope and extent of ’ professional

33

2. Amongst other functions, the Conveyancing tasked with assisting in settling disputes in respect of conveyancing transactions so that they need not be settled in Court. In

Professional Practice addition where customary conveyancing practice is unclear, the Committee may be asked to provide guidance. However where issues are clearly legal disputes of a magnitude that ought to be brought to the Court for a determination, the Committee will not interfere. Further elaboration of the Committee’s tasks and assistance are given below.

Committee’s consideration: i

a full and accurate of all material facts, bearing in mind the need to observe

ii. a summary of the conveyancing issues involved and the submission of the

Requesting guidance iii. all relevant case authorities or referred to legislation bearing on the presented issues should accompany the respective

seeking guidance from seeking a ruling or direction. Seeking guidance by a member may be made unilaterally. No ‘other party’ to the transaction should be named. Guidance given by the Committee is informative in nature and is not binding on any member. Guidance may not be used to indicate to ‘another party’ how ‘that party’ should act or conduct itself. The Committee discourages from seeking guidance on practices that are well established or ought to be known or practised in the ordinary course of a normal conveyancing transaction.

following in the protocol: i.

all submissions and copies of documents, case authorities, legislation etc. must be

ii. requesting must agree to abide and be bound by the Direction or Ruling

Requesting Direction(s) or Rulings

and more agree to place before the the relevant Conveyancing transaction and for the Committee to either provide the Direction or give a Ruling. Requests by should comply with the following protocols, otherwise the Committee may not consider the request:

iii. when asked to provide further documents by the Committee or to answer questions raised, the should respond

effect of a Decision by the Committee 5. Although the Committee does not monitor the actions or conduct of after the Direction or Ruling is given, the Committee expects that and comply with the Direction or Ruling given.

of conveyancing practice matters that do not require interpretation of any relevant Where aspects of common law are referred to, that common law must hinge on well known decided principles that are already enunciated by the Court. If the principle of law is being question or queried, the Committee may decline the request and recommend to the to

6. Any guidance, direction or ruling given is . The Committee may publish anonymised versions of the case referred to by and the decision of the Committee where the subjectmatter of the request is one of general application or interest to who practise conveyancing. 7. Whilst the Law Society and the Committee recognise that the recitation of facts and circumstances by requesting are to report any professional misconduct or criminal wrongdoings or breach of current PCR or code.

to the actual circumstances that have taken

timelines and Conclusion Direction or Ruling should set out for the

8. The Committee generally will provide its decision to any request within three to six weeks from date 34

Professional Practice of the request. This is after all the necessary documents are received by the Committee. should not expect instantaneous responses as the Committee are also working lawyers. No query will be entertained over the telephone. must not expect the staff of the Law Society or the Director-incharge of the particular portfolio to answer such queries. Expedited response will only be given as an exceptional case where the matter at hand is of utmost urgency.

of the legal profession and adversely affect the standing and perception of the legal profession in the eyes of the public.

to their clients and that the courts are the ultimate arbiters of the recovery of any legal fees and expenses. It would therefore be improper for solicitors and law practices to recover their fees and expenses by adopting a method used by some creditors in ordinary creditor/debtor relationships.

PDR 2013, PARAgRAPh 63 - uSe of DeBt CoLLeCtoRS foR the ReCoveRy of 5. In view of the above, the Council takes the position LegAL feeS AnD exPenSeS

that solicitors and law practices are not to engage, directly or indirectly, the services of debt collectors to recover outstanding legal fees and expenses.

[Formerly Council’s Practice Direction 3 of 2009] 1. This Practice Direction takes effect on 7 July 2009 and applies to all solicitors and law practices. 2. The Council takes cognizance of instances where law practices engaged the services of debt collectors to recover outstanding legal fees. In one recent case, a former client of a law practice lodged the Council. 3. For the purposes of this Practice Direction, the term ‘debt collector’ means any person engaged in any business of collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another. 4. Unlike a number of other jurisdictions, there appears to be a paucity of legislation and guidelines `of debt collectors. The use of debt collectors by solicitors and law practices raises a number of potential issues: 4.1.

There is a potential for the use of abusive, deceptive, and unfair debt collection practices by debt collectors. Unlike practicing solicitors, debt collectors are not bound by prescribed professional standards of conduct

4.2.

In certain circumstances, the remuneration arrangement for debt collectors may breach the existing rules relating to fee sharing and the payment of commissions under Rule 39 of the PCR.

4.3.

The use of debt collectors to recover outstanding legal fees and expenses may also solicitor, as well as derogate from the dignity 35

[Afternote: Refer to 2011 Guide, P137]

PDR 2013, PARAgRAPh 64 - oBtAining eviDenCe of A SoLiCitoR’S MiSConDuCt By entRAPMent oR By iLLegAL oR iMPRoPeR MeAnS [Formerly Council’s Practice Direction 5 of 2009] 1. This Practice Direction takes effect on 1 December 2009. 2. This Practice Direction applies to the obtaining

of the two modes of obtaining such evidence by the Court of Appeal in Wong Keng Leong Rayney v. Law Society of Singapore, 377at page 389, paragraph 27, as follows: 2.1 The term “entrapment” “involves luring or instigating the [solicitor] to commit an offence [or a breach of the rules of professional conduct] which otherwise, or in ordinary circumstances, he would not have committed, in order to prosecute him”. Entrapment “invariably entails unlawful conduct by an agent provocateur, in the form of abetment of the offence by instigation or intentionally aiding the [solicitor] to commit the offence [or a breach of the rules of professional conduct]”. 2.2 On the other hand, obtaining evidence illegally or improperly “does not necessarily involve any instigation or inducement on the part of the agent”.

Professional Practice 3. There have been a number of disciplinary cases in the past few years which revealed that one or more solicitors had hired private investigators to obtain evidence of touting by another solicitor in a different law practice suspected of procuring conveyancing work from real estate agents by giving referral fees. A common issue raised in these cases was whether such evidence had been obtained by entrapment or by illegal or improper means. In most of these cases, the Court found that such evidence had not been obtained by entrapment or by illegal or improper means. obtains evidence of another solicitor’s misconduct b y entrapment or by illegal or improper means, whether directly or indirectly, a number of ethical issues are raised: 4.1 The procurer “is subject to the same standards of conduct under the disciplinary code and also the law”: Law Society of Singapore v. Tan Guat Neo Phyllis page 264, paragraph 59. If the procurer is also the agent provocateur and is “guilty of wrongdoing, he should also be subject to the ordinary processes of the law, like any other offender or tortfeasor, including disciplinary proceedings”: Wong Keng Leong Rayney v. Law Society of Singapore, [2007] 4 4.2 The procurer’s conduct in instigating or intentionally aiding another solicitor to commit an offence or a breach of the rules of professional conduct is a breach of his obligation to treat his colleagues with courtesy and fairness under Rule 47 of the PCR. The procurer’s conduct is as objectionable as the ensuing breach committed by that solicitor. 4.3 The procurer’s conduct also derogates from the dignity of the legal profession and adversely affects the standing and perception of the legal profession in the eyes of the public. If a solicitor becomes aware that another solicitor has committed an offence or a breach of the rules of professional conduct, he should l odge a complaint with the Law Society in accordance with established procedures, instead of resorting to entrapment or illegal or improper means to obtain evidence about the other solicitor’s misconduct. 4.4 The Council also understands that a solicitor’s act of obtaining evidence of another solicitor’s misconduct by entrapment is viewed as deceptive conduct in 2 other foreign jurisdictions.

that it is improper for a solicitor to obtain evidence of another solicitor’s misconduct by entrapment or by illegal or improper means, whether directly or indirectly, when he becomes aware that the other solicitor has committed an offence or a breach of the rules of professional conduct. The procurer may therefore be liable to disciplinary action under section 83 of the Act. 6. The Council’s position in paragraph 5 above should not be taken in any way to excuse the conduct of a solicitor who has committed an offence or a breach of the rules of professional conduct. The errant solicitor will be equally liable to disciplinary action under section 83 of the Act, independent of any wrongful conduct by the procurer. The High Court observed in Law Society of Singapore v. Tan Guat Neo Phyllis 264, paragraph 59: “… the law governing entrapment evidence (whether proceedings has no application to disciplinary proceedings. The Court of Appeal in Rayney Wong CA also reached the same conclusion on the ground that primacy must be given to the legal profession’s ethical and professional code of conduct over any illegal or improper conduct of a member of that profession in procuring evidence to uphold the values of that code. The appropriate remedy in such cases is neither to exclude the evidence nor to stay the proceedings.” the highest ethical standards in their professional practice and conduct and uphold the values of the legal profession. [Afternote: Refer to 2011 Guide, P74-75]

PDR 2013, PARAgRAPh 65 - WARRAnt to ACt, LetteR of engAgeMent AnD RefeRRALS fRoM thiRD PARtieS [MoDifieD] A. Warrant to Act to be Signed by each Crew Member in Maritime Wage Claims [Formerly PDR 1989, Chapter 1, para. 49] When acting for clients such as ship’s crew in wage claims, a solicitor shall obtain a Warrant to Act signed by each crew member before or as soon as practicable after the issue of an iralty Writ in Rem. [Refer to 2011 Guide P12 Paragraph 1]

5. In view of the above, the Council takes the position

36

Professional Practice B. inserting Reservation of Rights in Warrant to Act

negotiation, compromise, settlement or conduct of that claim or action. This Practice Direction:


2.1 consolidates and highlights certain ethical obligations on warrants to act and providing generally applicable to all solicitors in

his retainer may well be averted by inserting an appropriate reservation of right in his client’s Warrant to Act. This reservation could be to the effect that the solicitor may at any time discharge himself based on take reasonable care to avoid foreseeable harm to the client. Without a suitable reservation of right, a solicitor who obtains his discharge may well expose himself to a claim for damages in the event his withdrawal leads to the dismissal of his client’s claim or the recovery of Judgment against his client when there is a valid defence. [Refer to 2011 Guide P12 Paragraph 2]

C. Request for Written Warrants to Act

2.2 establishes the ethical parameters of agreements entered into by solicitors with third parties for referral of work in non-injury and 2.3 complements the existing legislative regime under the Act, the PCR and the PR.

(i) Warrants to Act ing identity of the client before acting 3. Before accepting instructions to act in a matter, a solicitor or a law practice shall take reasonable measures to ascertain the identity of a client or a principal client as soon as reasonably practicable: practice must comply with the requirements for the

[Formerly RUL/1/1992] A law practice shall as a general rule accept another authorised to act for a particular client on the face value of the representation made, unless there are good reasons for suspecting that the representation has been falsely made. effect of a legal notice can be negated by a request for [Afternote: Refer to:

principal client set out in the Council’s Practice Direction 1 of 2008 on the Prevention of Money Laundering and Funding of Terrorist Activities.

Accepting instructions from the client to act 4. After a solicitor or a law practice has properly client, the solicitor or law practice may accept instructions from the client or an agent on behalf of a principal client to act in the matter. In the latter case, the solicitor must ensure that the agent has the required authority to give instructions on behalf of the principal client and, in the absence of evidence of such authority, the solicitor must, instructions with the principal client: Rule 23 PCR.

D. Code of Practice in non-injury and Personal injury Motor Accident Cases [Formerly PD/6/2009] 1. This Practice Direction takes effect on 1 December 2009. 2. This Practice Direction sets out a code of practice for solicitors concerning the making or commencement of any claim or action (for injury motor accident cases, and in respect of the 37

5. It is in the interests of both the solicitor and the client that the solicitor or the law practice should obtain written instructions of the client or his agent to act in the matter. If a solicitor or a law practice has received oral instructions from the client or his agent to act in the matter, the solicitor or law practice e Rules of Court. The absence of such a Warrant to Act is, if the solicitor’s authority to act is disputed, prima facie evidence that he has not been authorised to represent such party: Order 64 rule 6. In the context of a third party referring a client to a solicitor or a law practice, the solicitor or law practice, as the case may be, must comply with all

Professional Practice the solicitor or law practice must “communicate instructions in the process of providing advice and at all appropriate stages of the transaction”: must not accept instructions from the third party to act in the matter.

execution of the Warrant to Act by the client 7. It is in the interests of the solicitor to explain properly the nature, contents and scope of the Warrant to Act directly to his client, and not to delegate this duty to a staff of his law practice. Failure to provide the client with a proper explanation may result in disputes over what the client knew or was told when the Warrant to Act was executed, which may attract allegations of misconduct. Further, the of any contentious fee agreement between the solicitor and the client could be deemed unfair or unreasonable and such

1992 on Request for Written Warrants to Act.

(ii) Agreements with third Parties for Referral of Work 11 For referral of a client by a third party to a solicitor or a law practice, the solicitor or law practice, as the case may be, must comply with all the requirements 12. In addition, the Council is of the view that the ethical requirements stipulated in Rule 11B PCR for agreements for referrals of conveyancing services should similarly apply to agreements entered into by a solicitor or a law practice with third parties for referral of non-injury motor accident or personal injury motor accident work. For such agreements, the solicitor or law practice, as the case may be, shall ensure that the agreement is made in writing and contains the following :

of the Act. As a matter of precaution and prudence, it is in the interests of the solicitor to maintain comprehensive and contemporaneous attendance notes of the solicitor’s explanation to the client when the Warrant to Act is executed.

12.1

The referror undertakes in such an agreement to comply with the PCR and

12.2

The solicitor or law practice shall not: of commission, referral fee or any other

8. In the context of a third party referring a client to a solicitor or a law practice, the solicitor or law practice, as the case may be, is prohibited from leaving blank forms of Warrants to Act with the third party or allowing the third party to secure a client’s signature to a Warrant to Act The arrangements for the explanation and execution of a Warrant to Act must be made directly by the solicitor or the law practice with the client: Rule

of commission, referral fee or any other form of consideration.

7 above, it is in the interests of the solicitor to ensure that the Warrant to Act is executed by the client in the solicitor’s presence.

12.3

The solicitor or law practice must be entitled to terminate the agreement immediately if there is reason to believe that the referror is in breach of any of the

12.4

Any publicity of the referror (whether

Disclosure of the Warrant to Act to a third party

reference to any service that may be provided by the solicitor or law practice must not suggest any of the following:

9. A solicitor cannot refuse to disclose his Warrant to Act to a third party where his authority to act is disputed. Where an action has been commenced in Court, no privilege attaches ipso facto to a arrant to Act and a solicitor who receives a request to disclose his Warrant to Act should do so as a matter of course: Tung Hui Mannequin Industries v Tenet Insurance Co Ltd and Others [2005] 3

would be made according to whether or not the client instructs the particular services offered by the referror or any party related to the referror are conditional on the client instructing the solicitor or

should not be made unnecessarily. A law practice should as a general rule accept another law practice’s written representation that the latter is authorised to act for a particular client on the face value of the representation made, unless there are good reasons for suspecting that the representation has been falsely made: see Council’s Ruling 1 of

12.5

38

The referror must not do anything to impair the right of the client not to appoint the solicitor or law practice or in any way

Professional Practice the solicitor or law practice of his choice. 13. The solicitor or law practice must terminate the agreement immediately if the referror is in breach of any term referred to in paragraph 12 above or if there is reason to believe that the solicitor or law practice is in breach of such term.

a staged accident or otherwise committed any fraud, dishonesty, crime or illegal conduct, the solicitor or law practice has a duty to advise the client of the same and the legal consequences of misleading the Court. The solicitor or law practice should also advise the client to require the referror to make action. If the client refuses to accept the advice or if the referror refuses to make the appropriate solicitor or law practice, as the case may be, must terminate the agreement immediately and cease to act in the matter. When advising the client, the solicitor must not knowingly assist in or encourage any fraud, dishonesty, crime or illegal conduct. The solicitor must also, at all times, comply with his ethical obligations not to knowingly mislead or deceive the Court: see Rules 56 to 59 PCR. 15. Where the solicitor or law practice has terminated the agreement under paragraph 13 or paragraph 14 above, the solicitor or law practice, as the case may be, may continue to act in matters the solicitor or law practice was instructed before the termination but should not accept any further referrals from the referror.

letter of engagement can be found at Law Society’s website at www.lawsociety.org.sg (click Legal Ethics

f. Warrant to Act Containing Privileged Material [Ethics Committee Guidance: 10 March 2008] Where the Warrant to Act contains privileged material, it may nevertheless be disclosed by expunging that material before disclosure. Alternatively, the solicitor should obtain a further brief warrant that does not contain such material for purposes of disclosure: Tung Hui Mannequin Industries v Tenet Insurance Co Ltd and Others is therefore good practice to keep the Warrant to Act a separate document from the fee agreement, so that it can be readily furnished without having to disclose

g. Client engaging two Law firms [Ethics Committee Guidance: 12 December 2008] There is nothing in the Act, PCR or the Society’s Practice Directions that prohibits a client from of engagement, including their respective costs for acting in the matter, and the client consents to these to comply with their ethical obligations under their respective retainers with the client, including the

(iii) Providing Welfare Assistance to Clients 16. Solicitors should bear in mind Council’s Guidance Note 1 of 2004 on Providing Welfare Assistance to Clients, where Council advised that lending monies by a law practice to clients will put a interest as the solicitor will have a creditor/debtor relationship with his client and the debt would be re-paid only if the client’s case was either settled or paid. Council also advised that if the client’s case was pending litigation, allegations of maintenance nd champerty could be made against the law practice. Law practices should direct clients who are foreign workers to appropriate organizations that can provide welfare assistance to them.

e. Compliance with Rules 35 and 36 of PCR Although a solicitor is not required to advise his or her client in writing of the matters stated in rules 35 and 56 PCR, The Law Society recommends that solicitors draw up a letter of engagement to incorporate the advice required to be given under these rules. A sample

39


Standards of Adequate Professional Service with a Letter of Engagement” (Singapore Law Gazette,

Practice” (Singapore Law Gazette and Documents for Discovery in Litigation” (Singapore Law Gazette

Advertising PDR 2013, PARAgRAPh Ment AnD PuBLiCity [MoDifieD]

66 – In addition, every solicitor of the law practice must MeDiA comply with his or her ethical obligations in rule 24

A.Presenting a news Show on the Radio or television

PCR by taking all necessary measures to ensure that

and documents should be securely stored out of sight

[Formerly PDR 1989, Chapter 6, para. 1] It is not improper for a solicitor to present a news show on the radio or television.


[Afternote: Refer to 2011 Guide P147, paragraph 9]

B. ment through Press or tv [Ethics in Practice, Singapore Law Gazette, March 2010] ments through the press or TV, unlike public places, would not be touting or be reasonably regarded as touting. This is because ments through the press or TV do not have the added danger of direct-in-person solicitation (ie the potential client over-reaching because of the presence of his lawyer In addition, in the absence of the element of direct in-person solicitation in ments through the press or TV, the general public’s need for information about legal services would outweigh the concerns arising from the commoditisation of legal services. Hence, ments through the press or TV would

D. tv Commercials [Ethics in Practice, Singapore Law Gazette, March 2010; Ethics Committee Guidance: 9 February 2010] A solicitor should ensure that a TV commercial advertising his law practice is not reasonably because the commercial, which is usually brief, is primarily viewed by laypersons who can easily form A TV commercial may be reasonable regarded as misleading if it:

law practice only acts in uncontested divorce matters if the practice has no expertise or

bring the legal profession into disrepute” under rule [Afternote: Refer to 2011 Guide P146, paragraph 4]

(eg only a number is given without stating

[Ethics Committee Guidance: 12 June 2009]

the results that can be achieved by the solicitor or his law practice (eg stating that the law practice will be able to recover party and party costs in a

but every solicitor of the law practice is responsible rules governing publicity in Singapore, which are found in Part III of the PR. Thus, the name of the law practice should not be disclosed in any of the scenes as such disclosure may reasonably be regarded improper for the name of the law practice to appear in the closing credits as acknowledgment of the law practice’s participation.

PR if it suggests that other law practices overcharge their fees or sets out price lists. However, it is not improper for the commercial to refer generally to meet budgetary concerns, as such arrangements are 40

Advertising advisable that, for proper compliance with rules 35 and 36 PCR, a solicitor’s duty to disclose detailed information relating to fees would be best discharged by personally explaining it to the client as opposed to highlighting it in a brief TV ment.


A. Public Appearances by Solicitors Subject to the PR, where a solicitor:-


e. Complimentary Advertising in newspaper [Ethics Committee Guidance: 22 June 2009] of complimentary advertising in a newspaper, so long with rules 6 and 7 PR. In particular, the description of

[Afternote: Refer to 2011 Guide, P153, paragraph 1]

or legal or non-legal subject, a solicitor and the name of his law practice and or specialised knowledge directly relevant to the

PDR 1989, ChAPteR 6, PARA. 2 - subject-matter of the publication or appearance. SingAPoRe teLePhone DiReCtoRy [RePeALeD] [Afternote: PDR 1989, ChAPteR 6, PARA. 3 - uSe of the nAMe of the LAW fiRM foLLoWing the nAMe of A LAWyeR in PRofeSSionAL PuBLiCAtionS, ConfeRenCe PAPeRS, ConfeRenCeS oR SeMinARS [RePeALeD] PDR 1989, ChAPteR 6, PARA. 4 MentS in “PAtent AnD tRADe MARkS RevieW” [RePeALeD]

Refer to 2011 Guide P147 paragraph 7 For more details on use of descriptions and designations, refer to PDR 2013, paragraph 69 herein to Starting a Practice – What Every Lawyer should know accessible from the Law Society’s website at: h t t p : / / w w w. l a w s o c i e t y. o rg . s g / f o r M e m b e r s / R e s o u r c e C e n t r e / R u n n i n g Yo u r P r a c t i c e / StartingaPractice/AGuidetoStartingaPractice/

PDR 1989, ChAPteR 6, PARA. 5 - tRADe MARkS & PAtent AgentS [RePeALeD] B. organising Seminars PDR 1989, ChAPteR 6, PARA. 6 APPeARAnCe of PRofeSSionAL QuALifiCAtionS AnD/oR ACADeMiC QuALifiCAtionS in the PReSS [RePeALeD] PDR 1989, ChAPteR -PhotogRAPhS to [RePeALeD]

6, PARA. 7 the PReSS

[Ethics Committee Guidance: 27 May 2005] It is not improper for a law practice to organise and a seminar for of the public to be conducted at its premises as a means of self-promotion and charge ission fees. However, the law practice must ensure compliance with the PR at all times. [Afternote: Refer to 2011 Guide P147, Paragraph 8]

PDR 1989, ChAPteR 6, PARA. 8 - C. Answering of Questions on Legal Matters ADveRtiSing - PReSS inteRvieWS in non-Legal Publications [RePeALeD] [Formerly PDR 1989, Chapter 6, para. 20; Ethics

PDR 2013, PARAgRAPh 67 - PuBLiCity Committee’s Guidance: 14 May 2010] By SoLiCitoRS thRough PuBLiC APPeARAnCeS AnD ContRiButionS Rule 10 does not apply to the answering of questions to PuBLiCAtionS [MoDifieD] by solicitors on legal matters in non-legal publications, 41

Advertising as a non-legal publication is not a “facility” which holds itself out as giving legal assistance to the public.

act for the other party to a conveyance, the letter to the other party should be worded thus (according to Sir Thomas Lund’s A Guide to the Professional Conduct and Etiquette of Solicitors, (The Law

name, the fact that he is a solicitor, the name of his law practice and particulars may be given of any special relevant to the subject-matter of the publication. This aside, solicitors should be mindful that providing such a service can entail legal consequences in the event wrong advice is given resulting in loss sustained by readers who have adopted such advice. Solicitors may therefore wish to include an appropriately worded disclaimer for the inquirer to seek independent legal advice before acting on any advice set out in the publication. [Afternote: Refer to 2011 Guide P154, Paragraph 1]

“I understand from my clients that they have arranged to sell to you the above property at the price of _____ subject to contract. In order that the matter may proceed, will you please let me know the name and address of the solicitors who will be acting for you.” [Afternote: Refer to: Rule 6 of the PR: Responsibilities for publicity within

PDR 2013, PARAgRAPh 68 CoRReSPonDenCeS to PotentiAL CLientS WheRe SoLiCitoR iS PeRMitteD to ACt foR MoRe thAn one CLient in A tRAnSACtion [MoDifieD] [Formerly PDR 1989, Chapter 6, para. 10] act for more than one client in a particular transaction, the solicitor should be mindful of the danger of using phrases which can be construed as an invitation to employ the solicitor, which will infringe the rule against touting. Thus, even if the solicitor has been informed by his client that the other party wishes to retain the solicitor to act for him, it is suggested that the letter to the other party s hould take the following form:“I understand from my clients that they have arranged to sell to you the above property at the price of ____ subject to contract, and that you would like me to act on your behalf. While I should be happy to act for you if you so wish, I would point out that you are not bound to employ me and are entitled to instruct any other solicitor of your own choosing. Will you that I should act for you, or let me have the name and address of the solicitors who will act for you.”

PDR 2013, PARAgRAPh 69 - RuLeS 4 AnD 6 of the LegAL PRofeSSion (PRofeSSionAL ConDuCt) RuLeS 1998) [Formerly Council’s Ruling 1 of 2001] 1. Rule 4 of the PCR states that the Council’s approval must be obtained for the use of any description other than ‘advocate and solicitor, lawyer and legal consultant’ to describe a solicitor. 2. Under Rule 6, a solicitor must comply with all directions of the Society regarding professional stationery, signboards and nameplates. 3. The Council has approved on 12 January 2001 the use of the following designations for directors and lawyers employed in a law corporation: to-day executive management function of the law corporation.

In contrast, the use of the following sentence in a letter, without more, infringes the rule against touting as it does not make clear that the recipient is entitled to instruct a solicitor of his own choice: “If you want us to act for you, please instruct us accordingly or if you have your own solicitors, please instruct them to us.” 42

Advertising The sub-committee and Council agreed that r 9 of the Publicity Rules 1998, which absolutely prohibited advocates and solicitors from participating in client or third party publicity had to be reviewed. 4. The Council has also ruled from 12 January 2001 that the calling cards of directors of a law corporation must carry the description ‘advocate and solicitor’ after their designation. 5. The Council would kindly remind that if calling cards are to be given to staff employed in an executive capacity, the following information must be contained in the calling card: i.

the name of the person for whose use the

ii. the designation, which shall be stated in a manner as not to give the impression that he is a solicitor. 6. are reminded that it is the duty of the solicitor who provides the business card to ensure that the member of staff shall not use the business corporation or in circumstances that will result in a breach of the PCR or PR. [Afternote: Refer to 2011 Guide, P165-166]

PDR 2013, PARAgRAPh 70 - thiRD PARty PuBLiCity [MoDifieD]

The sub-committee and Council also agreed that any amendment of any rule must be done by studying the impact of that change generally on the practice of law and not merely from an IT point of view. The sub-committee came to the conclusion, after looking at services provided on the internet and the growing trend of referral arrangements for work internet, that r 9 of the [PR] had to change. The subcommittee’s recommendations were accepted by the Committee and Council. In essence, the amended r 9 of the [PR] allows an to participate in any third party or client publicity. The only caveat is found in rr 6 and 7 of the [PR] that set out the general principles of publicity within law corporation. The established rule of not publicising the practice in a false or misleading manner or to bring the legal profession into disrepute and the power of the Council to determine that the publicity is undesirable still The provision in r 6 of the [PR] that an advocate


A. Amendment to Rule 9 PR in 2001 [“Understanding the Recent Amendments to the Professional Conduct and Publicity Rules”, Singapore Law Gazette, December 2001] “The impact of IT was most felt with the introduction of the internet. The Council received from that they were being asked to hyperlink their websites with their clients or to give information parties. A sub-committee consisting of of the IT and ethics committees was formed in 2000 to study the impact of IT on ethics. The sub-committee’s work led to the amendment of rr 6 and 9 of the Publicity Rules 1998, the introduction of rr 11A and 11B to the PCR and the Guidance Note on Ethics and IT published in this issue of the Law Gazette.

43

In light of the liberalisation of the Rules to allow third party publicity, the Council felt that amendments were required to both Rules to provide clear guidelines as to the extent that third party publicity would be permissible. The Committee was tasked to consider the appropriate safeguards. An amendment made on Rules shall be interpreted as permitting the doing of anything … that … may reasonably regarded as touting”. This rule reminds that although the Council has allowed advocates and solicitors to participate in client or third party publicity, the law against touting still exists and must be mindful of it when engaging in publicity whether directly or through

Advertising B. Complimentary Advertising in newspaper [Ethics Committee Guidance: 22 June 2009] to complimentary advertising in a newspaper, so long

PDR 2013, PARAgRAPh 72 - gReeting CARDS to send to their clients Greeting Cards on festive occasions.

with rules 6 and 7 PR. In particular, the description of

PDR 1989, ChAPteR 6, PARA. 16 ChAMBeR of CoMMeRCe [RePeALeD]

[Afternote:

PDR 1989, ChAPteR 6, PARA. 17 - LegAL noteS in the LAW [RePeALeD]

Refer to:

PDR 1989, ChAPteR 6, PARA. 18 PARtiCiPAtion By SoLiCitoRS ACting foR BAnkS in SeMinARS [RePeALeD]

PDR 2013, PARAgRAPh 71 - PRinting of PDR 1989, ChAPteR 6, PARA. 19 nAMeS on enveLoPeS [MoDifieD] BRoChuReS [RePeALeD] [Formerly PDR 1989, Chapter 6, para. 13] It is proper to use envelopes printed with the names telephone numbers, provided such envelopes are used exclusively for professional business.

[Society’s Note: Refer to rule 9 of PR: Third party publicity.]

PDR1989, ChAPteR 6, PARA. 21- fRee LegAL ADviCe [RePeALeD]

[Afternote:

Giving of free legal advice.]

Refer to:

PDR 1989, ChAPteR 6, PARA. 22 CALLing CARDS - CLeRkS [RePeALeD] PDR 1989, ChAPteR 6, PARA. 23 neWSLetteR on ReCent LegAL DeveLoPMentS [RePeALeD]

PDR 1989, ChAPteR 6, PARA. 14 geneRAL RuLeS on ADveRtiSing [RePeALeD] [Society’s Note: Refer to:

PDR 2013, PARAgRAPh 73 - CoRPoRAte StAtioneRy [MoDifieD] [Formerly RUL/1/2000] 1. are kindly reminded that under Rule 6 of the PCR, a solicitor must comply with all directions of the Council on professional stationery, signs, signboards, and nameplates. 2. The Council has recently approved the publication The Council had previously approved the publication of the names of foreign legal international or regional practice. [Afternote: Refer to 2011 Guide, P166] 44

Advertising PDR 2013, PARAgRAPh 74 - DiStRiBution of fLyeRS oR LeAfLetS

a potential for abuse as the public is not able to

Places [Ethics in Practice, Singapore Law Gazette, March

public places can be an act which may be reasonably

Direct, in-person solicitation would also be a breach

more commonly associated with the retail of goods and provision of services of a vocational and nonprofessional nature.

for third parties to pick up when visiting the premises.

[Afternote: Refer to 2011 Guide, P149, paragraph

d) Placing firm’s Brochures and newsletters at Client’s Premises [Ethics Quandary, Singapore Law Gazette, March 1999, page 16] and newsletters at their premises the Council may determine that the manner of publicity of the practice [Afternote: Refer to 2011 Guide, P150, paragraph 3]

PDR 2013, PARAgRAPh 75 - RefeRRALS/ hyPeRLinking of WeBSiteS 2008]


b) Distribution of Mailers and Calling Cards of assisting the agents’ potential clients are not to hDB Residents [Ethics Committee Guidance: 27 September 2000] cards to HDB residents as this would be a breach of [Afternote: Refer to 2011 Guide, P148, paragraph

arrangement between the property agent and the law practice. However, the description of the hyperlink must not mislead viewers by suggesting that the property agent is in a position to give legal advice or that the law practice is formed by the property agent to provide legal consultation on the real estate matters or that the viewer has to exclusively use the services of the law practice. Otherwise, this may constitute an

c) flyer Stating “Legal services”, followed by Law firm’s number

[Afternote:

[Ethics Committee Guidance: 5 October 2009]

Refer to:

Such publicity is reasonably regarded as being because there is no way for the public to whether the r of legal services is in fact a solicitor or

45

Advertising PDR 2013, PARAgRAPh 76 - Contravention of this illustration may reasonably be iDentifiCAtion of LAWyeRS oR LAW regarded as being misleading, deceptive or inaccurate fiRMS Claim to expertise or specialisation (rule 6(1) (a) PR)


[Ethics in Practice, Singapore Law Gazette, March 2010]

a) Letterheads should be limited to:

Singapore’s requirements

legislative

and

regulatory

PR, only an employee of the law practice may make a claim as to expertise or specialisation. It is inferred can make a claim to expertise or specialisation under practice. As such, only the names of persons who are employees are permitted in the letterheads of their law practices and the names of foreign legal lawyers/ to practice in Singapore and are not considered employees of law practices in Singapore. Otherwise, such publicity may reasonably be regarded as being misleading, deceptive or inaccurate publicity under

b) Bills, notepaper, faxes, e-mails, Brochures and Websites such as its bills, notepaper, faxes, e-mails, brochures with the individual foreign lawyer. The following wording would be the minimum necessary for this purpose: to practise [foreign law], not ed as a foreign lawyer practising in Singapore, not regulated by the Law Society of Singapore and not a member of the

46

General PDR 2013, PARAgRAPh 77 – inteReSt in A PuBLiC AuthoRity [Formerly PDR 1989, Chapter 7, Para. 1] As a general rule, a solicitor who is a member of public authority or any partner of or assistant employed by such a solicitor should not be professionally engaged against such authority in any proceedings to which such authority is a party or in any matter in which such authority is directly interested. If exceptional circumstances justify any departure from thus general rule, it is the duty of the solicitor to ensure that the interests of the authority are effectively protected.

PDR 1989, ChAPteR 7, PARA. 2 unPRofeSSionAL ConDuCt [RePeALeD]

must be a bill of costs or other written intimidation of the amount of the costs incurred. Signatories to cheques drawn on client should be persons meeting the requisite requirements under

PDR 2013, PARAgRAPh 79 - MonieS DRAWn on CLient in SAtiSfACtion of SoLiCitoR’S CoStS - RuLe 7(1) (A) (iv) SoLiCitoRS’ S RuLeS [ReiSSueD] [Formerly PD/2/2011] of the SAR which reads as follows: “7. There may be drawn from a client -

[Society’s Note: Refer to:

of the solicitor’s costs where a bill of costs or written intimation of the amount of the costs incurred has been delivered to the client and for him will be applied towards or in and

2. Before a solicitor can deduct monies from a client in satisfaction of his costs, he must:

PDR 1989, ChAPteR 7, PARA. 3(A) – ReQuiReMentS ConCeRning LAW PRACtiCeS’ S [RePeALeD]

other form of written intimation of the amount of costs incurred, AND

[Society’s Note: Refer to PDR 2013, Paragraph 79 (formerly Council’s Practice Directions 2 of 2011 and

will be deducted in satisfaction of his costs, AND

PDR 2013, PARAgRAPh 78 - DRAWing Money foR LegAL CoStS fRoM CLient [MoDifieD]

paragraph 2 hereof, before transferring such amount for costs out of the client . 3. Failure to follow the process set out above could render a solicitor to be in breach of the SAR and thereby guilty of professional misconduct.

[Formerly PDR 1989, Chapter 7, para. 3(b)] While all practising solicitors should be familiar with had previously noted with concern the increasing frequency of complaints from the lay client of monies from the client being applied towards payment of the solicitors’ costs without the knowledge or consent of the client.

47

4. This Practice Direction supersedes Council’s Ruling 1 of 1991.

d) Responsibilities and Duties of a Second Signatory under the Legal Profession (Solicitors’ s) Rules (“s Rules”) and Legal Profession (Solicitors’ trust s) Rules (“trust s Rules”)

General [Formerly PD/3/2011] 1. This Practice Direction takes effect from 1 August 2011.

copy of the bill of costs or other written intimation of costs sent to the client in compliance with the 2 day notice requirement as prescribed in Council’s Practice Direction 2 of 2011. That endorsed on the bill of costs or in a cover letter is a notice to the client that if

2. This Practice Direction of the Council sets out the responsibility and duties of a practising lawyer to any cheque or any authorisation for withdrawal f monies from any client or trust under the SAR or the Trust s Rules (Cap. 161, R

within two days of posting the transfer of take place.

when fees may be chargeable by the second signatory.

to pay damages due to the client or in a matrimonial matter for payment of maintenance, the relevant settlement letter or agreement or order of court evidencing the sum as payable to the client or third party named in the cheque or authorisation.

Basic Responsibility 3. A lawyer who acts as a second signatory must that every withdrawal from a client complies with Rule 7 of the SAR and Trust s Rules.

client a written letter of authority signed by the client to the law practice consenting to the payment of client money to the named agent.

complying with the duties set out in this Practice Direction.

Duties of the Second Signatory 5. The second signatory must take reasonable steps to check that moneys to be withdrawn were deposited into and is to be withdrawn from the client or trust as the case may be. 6. The second signatory must review ing signatory lawyer to the withdrawal from the client or trust as the case may be. information and or documents for the second signatory to carry out his/her duties under this Practice Direction then the second signatory should not sign the cheque or other authorisation of withdrawal.

Relevant ing Documents to be Shown to Second Signatory 8. The Practice Direction cannot prescribe the ing documents that a second signatory must have sight of in every type of case to ensure that the withdrawal will be in compliance with Rules 7 of the SAR or Trust s Rules. 9. However some examples of documents are as follows:

10. The Council wishes to remind that lawyers acting as a second signatory for client moneys who fail to exercise reasonable care may be

fees Chargeable by the Second Signatory 11. Council permits the second signatory to charge a fair and reasonable fee for carrying out his duties and responsibilities as a second signatory. 12. A fee can only be charged if a lawyer acts as a second signatory to the client or trust of another law practice. 13. The fee charged must be to carry the duties set out above namely to take reasonable steps to check the moneys to be withdrawn were deposited into and are to be withdrawn from the client or trust and review ing documents submitted to evidence the withdrawal in compliance with Rules 7 of the SAR and Trust s Rules. the fee payable to the second signatory and that the of client matters for which he is performing his duties as a second signatory. 15. Prior to the engagement of the second signatory,

48

General must be informed that:matter under the SAR and that the law practice will engage a second signatory from

is performing his duties as a second signatory. 16. The law practice must inform and explain to the client, in accordance with the PCR, the arrangements with regards to the fees to be charged by the second signatory, if any.

Singapore: The Law Society of Singapore,

17. This Practice Direction supersedes Council’s Practice Direction 1 of 2007 and Practice Direction 3 of 2007.

PDR 2013, PARAgRAPh 81 - exeCutive APPointMentS AnD engAgeMent in BuSineSS, tRADe oR CALLing [MoDifieD]

PDR 2013, PARAgRAPh 80 - ADoPtion PRoCeDuRe [MoDifieD]

A. Directorship



Procedurally it would save time and would be of assistance to the Court if all papers were properly

Practising solicitors are entitled to hold the post of director of a company engaged in a commercial enterprise subject to the following conditions:-

proceeding are observed: an honourable one that does not detract his status

arrangement with the company involving him in Form 151, together with all the necessary 3. Filing of consent of Director of Social Welfare 4. Either

the

consent

of

relevant

application for dispensation of consent of the

is calculated to attract business to him unfairly or to lead to any other infringement of the rules of

any way prohibited by the Act, Rules 10 and 11 of the PCR or any subsidiary legislation made under the Act. [Afternote:

on the GIA and any relevant persons. Any application to dispense with consent of a relevant must be in Form 153 of the Rules of Court and served on the relevant person unless the court otherwise orders. [Afternote: Refer to:

49

Refer to:

and

General Note: exceptions regarding executive appointment for solicitors in a limited liability law partnership

clients in his/her capacity as an advocate and solicitor in exchange for consideration. In addition, if it is the external corporate secretarial

B. executive Partnership/Directorship in employment Agency, firm or Company

to the lawyer for his/her services as a company

[Formerly PDR 1989, Chapter 7, para. 5(b)] The assumption of an executive partnership or an executive directorship in an employment agency, the Act.

C. Solicitor’s secretary

appointment

as

company

[Ethics Committee Guidance: 29 May 2009] It is proper for a solicitor to be appointed as a company secretary, whether fo the law practice’s own clients exchange for consideration. However, if a solicitor acts as a company secretary these clients will be the clients of the solicitor’s law practice as well, even if they do not directly pay the fee to the solicitor for his or her services, but to the solicitor. This is because acting as a company secretary exchange for consideration amounts to the practice of law and can only be effected through a proper practice structure. This is contemplated by section solicitor must, before he does any act in the capacity of an advocate and solicitor, apply for a practising evidence of the practice structure in which he will prohibits any advocate and solicitor from applying for to practise in a proper practice structure. In addition, rule 5 PCR prohibits an advocate and solicitor from practising in more than one law practice.

on behalf of another...has power, express or implied, to retain or employ...a solicitor, a law corporation or a limited liability law partnership ...” for noncontentious business. For the reasons mentioned engage a lawyer as a company secretary independently of his/her law practice. concurrent and successive, could potentially arise between the law practice and the external corporate

of his/her general professional ethical obligations, including rule 28 PCR. may be precluded from acting against an external future under rule 31 PCR and the general law. As a matter of good practice, the law practice should and/or its clients in the future. From a professional indemnity angle, the professional indemnity policy covering the law practice which the solicitor is in will extend to the solicitor’s services as a company secretary only if the services are provided by him/her through, and as part and parcel of, his/ her law practice. It follows that the professional indemnity policy will not cover the solicitor’s work as a company secretary if the work is provided outside, or independently, of his/her law practice.

D. Solicitors Doubling or Acting as housing Agent

Hence, any services that the solicitor renders as a company secretary in exchange for consideration should be effected through his/her law practice to avoid circumventing the requirements of the Act, the SAR, the Legal Profession (Professional Indemnity

[Formerly RUL/1/1994]

and the Society’s Practice Directions. It follows that the solicitor should obtain prior approval from his/ her law practice if he/she is acting as a company

2. In the view of the Council carrying on the business of a housing agent in tandem with that of a lawyer would not be compatible.

1.

50

It is not only a tradition but an article of faith of the Bar that the honour and dignity of the profession should at all times be maintained.

General the disciplining of of the Bar, states that a solicitor may be struck off or suspended for cause if he carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or in any way incompatible with it, or is employment in any such trade, business or calling. 4. The calling of a housing agent, “broke” in common parlance, would detract from the honour and dignity of the Bar. The Council is therefore of the opinion that the business of a housing agent is incompatible with that of a solicitor.

e. Solicitors Doubling or Acting as estate Agents [Formerly PD/2/2010] 1. This Practice Direction takes effect from 16 November 2010. 2. The Council of the Law Society had published: Solicitors Doubling or Acting as Housing Agent in April

The calling of a housing agent, “broker” in common parlance, would detract from the honour and dignity of the Bar. The Council is therefore of the opinion that the business of a housing agent is incompatible with that of an advocate and solicitor.” 5. The Council re-considered the 1994 Ruling in 2001 and informed by the 2001 Ruling that if in the course of the practice of the solicitor, the opportunity arose for the solicitor to make an agreement with a prospective vendor or purchaser that the solicitor would be paid a commission as “broker” a deal in such circumstances would not necessarily detract from the honour and dignity of the Bar and the solicitor was not prohibited 6. The Council is of the view that the Amended Rule remains applicable after the enactment of the Act, as section 4 of the Act provides that “[the] Act does not apply to anything done -

of 2001 on Solicitors Doubling or Acting as Housing Agent in August 2001 (the ”2001

profession, or by any person employed by him and acting in furtherance of that course, in introducing to the client, third persons who wish to acquire or dispose of a property (whether for remuneration or

3. In view of the enactment of the Estate Agents Act

by him do not perform any other work that falls within

the 2001 Ruling. The new Practice Direction is set out at paragraphs 4 to 8 below. 4. In the 1994 Ruling, the Council ruled as follows: “It is not only a tradition but an article of faith of the Bar that the honour and dignity of the profession should at all times be maintained. In the view of the Council carrying on the business of a housing agent in tandem with that of a lawyer would not be compatible.

estate agency work, whether or not he carries on that or any other business”. The term “estate “any work done in the course of business for a client or any work done for or in expectation of for a client —

The provisions of Section 83 of the Legal Profession Act which deals with the disciplining of of the Bar states that an advocate and solicitor may be struck off or suspended for cause such as:

to the client of a third person who wishes to acquire or dispose of a property, or to the negotiation for the acquisition or disposition

employment any trade, business or calling that detracts from the profession of law or in any way incompatible with it, or is employed in any such trade, business or calling. [sub-

the client of a third person who wishes to acquire or dispose of a property or the negotiation for the acquisition or disposition of a property by the client, in relation to the acquisition or disposition, as the case may be, of the property by the client.”

51

General 8. The Council is also of the view that as in the 2001 Ruling, the solicitor must nevertheless at all times

PDR 2013, PARAgRAPh 83 - PRACtiCe tRAining ContRACtS [MoDifieD]

Amended Rule:


8.1. where, in addition to securing the purchaser

The number of practice trainees that a member might supervise at any time is limited to two.

goes further to act in the conveyancing transaction, the solicitor will not be entitled to no longer apply, and the solicitor must c omply strictly with the Legal Profession

8.2. the Amended Rule is not meant to permit and is not to be read as permitting a solicitor to To be an estate agent in tandem with being a solicitor continues to be prohibited. [Afternote: Refer to 2011 Guide, P172-176]

PDR 1989, ChAPteR 7, PARA. 6(A) - StAMP on notARiAL PuBLiC [RePeALeD] PDR 2013, PARAgRAPh 82 - feeS PAyABLe to notARy PuBLiC [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 6(b)]

PDR 2013, PARAgRAPh 84 ReSPonSiBiLitieS in SuPeRviSing PRACtiCe tRAineeS [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 8(b)] The Council had been informed of a pupil [as the term was then known] who purported to appear on a watching brief for an Insurance Company in a Coroners Inquiry. During the Inquiry, the pupil was invited on two occasions to ask questions but declined each time without informing the Court that he had not yet been called to the Bar. The Council wishes to remind of their responsibilities in supervising their practice trainees. The attention of the of the bar is also drawn

of the Bar are informed that the Notaries

PDR 2013, PARAgRAPh 85 - Quoting of RefeRenCeS in CoRReSPonDenCe

came into operation effective on 1st July 1988. The

[Formerly PDR 1989, Chapter 7, Para. 9]

The fees payable to Notary Public are set out in the First Schedule of the Notaries Public Rules.

PDR 1989, ChAPteR 7, PARA. 7(A) APPointMent of notARieS PuBLiC [RePeALeD]

Representations have been received from of the Bar that when writing to one another, of the Bar have omitted to quote the other solicitors’ reference, although they generally asked for their own references to be quoted in correspondence. of the Bar are kindly asked to co-operate in this matter.

[Society’s Note: should refer to the following link for information on appointment of notaries public: http://www.conp.sg/appointmentcriteria]

PDR 1989, ChAPteR 7, PARA. 10 RegiStRAtion of tRADe MARkS in SARAWAk [RePeALeD]

PDR 1989, ChAPteR 7, PARA. 7(B) APPointMent of notARieS PuBLiC [RePeALeD]

PDR 2013, PARAgRAPh 86 - SeRviCe of oRiginAting PRoCeSS on SoLiCitoRS [MoDifieD]

[Society’s Note: Refer to http://www.sal.org.sg or http://www.conp.sg/ for details for notaries public applications.]

[Formerly PDR 1989, Chapter 7, Para. 11(a)]

52

General A. Accepting Service of originating Process Solicitors when writing to the effect that they have instructions to accept service, should state that they “undertake” to accept service and enter an “appearance” instead of the usual form of merely “we have instructions to accept service.”

B. effecting Service of originating Process, Court Documents or other Written Communications on a Client of Another Solicitor [Formerly PD/4/2012] 1. This Practice Direction takes effect on 12 November 2012. 2. This Practice Direction sets out the ethical proceedings and who is instructed to effect service of originating process, court documents or other

proceedings.

Where Personal Service of Documents is not Allowed 3. If: 3.1. the Solicitor has been in communication with the Third Party’s Solicitor and such communication is related to the Client’s actual 3.2.

the Rules of Court or other applicable law require the Solicitor to serve the Documents on the Third Party personally but permit the Solicitor to serve the Documents on the Third Party’s Solicitor as an alternative to personal not serve the Documents on the Third Party personally unless:

3.3.

the Solicitor has enquired with the Third Party’s Solicitor whether the latter has instructions to accept service of the Documents

within 3 working days (excluding a Saturday, of time as agreed between the parties that the Third Party’s Solicitor has instructions 53

to accept service of the Documents on behalf of the Third Party.

illustrations a) The Solicitor was involved in settlement negotiations with the Third Party’s Solicitor in a tenancy dispute. Subsequently, the Client instructed the Solicitor to effect service of a Writ same matter: i) The Solicitor serves the Writ on the Third Party at the Third Party’s residential premises without making any enquiry whether the Third Party’s Solicitor had instructions to accept service of the Writ on behalf of the Third Party. The Solicitor is prima facie in breach of paragraph 3.3 of this Practice Direction. ii) Before effecting service of the Writ, the Solicitor wrote to the Third Party’s Solicitor to enquire if the latter had instructions to accept service of the Writ on behalf of the Third Party. The Third Party’s Solicitor indicated that he would be taking the Third Party’s instructions and would revert shortly on whether he was instructed to accept service. No reply was received from the Third Party’s Solicitor after two working days, The Solicitor then immediately proceeded to serve the Writ personally on the Third Party without waiting for the reply from the Third Party’s Solicitor. The Solicitor is prima facie in breach of paragraph 3.4 of this Practice Direction. b. The Solicitor was involved in settlement negotiations with the Third Party’s Solicitor in a tenancy dispute. Subsequently, the Client instructed the Solicitor to effect service of a Writ civil dispute unrelated to the tenancy dispute. The Solicitor did not enquire whether the Third Party’s Solicitor had instructions to accept service of the Writ on behalf of the Third Party. The Solicitor is prima facie not in breach of paragraph 3.3 of this Practice Direction. 4. Where paragraphs 3.1 and 3.2 apply except that the Solicitor is not permitted by the Rules of Court or other applicable law to serve the Documents on the Third Party’s Solicitor, the Solicitor must inform the Third Party’s Solicitor in writing that personal service of the Documents on the Third Party had been effected, without delay and as soon as possible in the circumstances, having regard to the nature of the act to be done.

General ethical Duties in effecting Personal Service of Documents

documents and other correspondence served on their clients.

5. In all cases where the Solicitor effects personal service of the Documents on the Third Party, the Solicitor must:

PDR 2013, PARAgRAPh 87 - tWo-thiRDS RuLe [MoDifieD]

5.1. limit communication with the Third Party (which includes persons associated with

5.2. comply with his ethical duties vis-à-vis the Third Party and the Third Party’s Solicitor under Rules 30, 47, 48 and 53A of the PCR.

illustrations The Solicitor accompanied the Client to serve a notice to evict on the Third Party, who is the tenant of the Client’s premises:

[Formerly PDR 1989, Chapter 7, para. 12] The Law Society considered a letter enquiring whether in its opinion the English rule of practice and etiquette known as the “Two-thirds Rule” whereby Junior Counsel is paid a fee equivalent to two-thirds of that paid to his leader is applicable in Singapore. The Law Society was not aware of the existence of such a rule and had never enforced the same in Singapore. [Afternote: Refer to:

a) The Solicitor behaved in a hostile manner towards the Third Party by using offensive language and threatening actions. The Solicitor is prima facie in breach of paragraph 5.1 of this Practice Direction.

of solicitors, law corporations or limited liability

b)The Solicitor knows that the Third Party’s Solicitor is representing the Third Party in this matter and intends to communicate with the Third Party at the Client’s premises in accordance with paragraph 5.1 of this Practice Direction. Pursuant to paragraph 5.2 of this Practice Direction, the Solicitor must be mindful of his additional ethical duties under Rules 30, 47, 48 and 53A of the PCR.

PDR 1989, ChAPteR 7, PARA. 13 WeARing of WigS [RePeALeD]

6. For the avoidance of doubt, this Practice Direction is subject to:

PDR 1989, ChAPteR 7, PARA. 14(A) ChAnge of ADDReSS [RePeALeD]

6.1 any directions of the Court (including directions that the Documents are to be served

PDR 1989, ChAPteR 7, PARA. 14(B) - ChAngeS to LAW PRACtiCeS’ ADDReSSeS AnD otheR PARtiCuLARS [RePeALeD]

6.2 prevailing practice directions by the Supreme 6.3 anything to the contrary in any written law, including the Act and the subsidiary legislation thereunder, in particular, Rule 48 of the PCR.

PDR 2013, PARAgRAPh 86 ACknoWLeDgeMent of DoCuMentS [Formerly PDR 1989, Chapter 7, Para. 11(b)]

[Society’s Note: can now publish any change of address under the “Professional Moves” section of the Singapore Law Gazette. can also access the following link on the law society’s particulars: http://www.lawsociety.org.sg/AboutUs/Us/ aspx]

should accept and acknowledge services of all Court

54

General PDR 2013, PARAgRAPh 88 - CoMPLAintS unDeR SeCtion 85 of the ACt [MoDifieD] Procedure for Complaints [Formerly PDR 1989, Chapter 7, para. 15(a)] Solicitors who make complaints or who act for complainants are requested to furnish to the Secretariat of the Law Society of Singapore, 1 copy of their letters of complaint with the relevant enclosures.

Complaints to be Made on Substantial grounds

President, has had discussions with the Commissioner of Estate Duties with a view to establishing some form of standard working arrangement with the Commissioner which will have the effect of expediting assessments of estate duty and generally making matters easier for all concerned. The following notes for the guidance of of the Bar who are acting in matters involving estate duty are issued with the approval of the Commissioner:

In a previous complaint investigated by the Inquiry Committee, it was noted that the complaint, under investigation, was not substantiated. The Council had

forms, “Form A” to be used in cases where the deceased was domiciled in Singapore had no moveable property outside Singapore. “Form B” to be used in cases where the deceased was domiciled in Singapore and had moveable property outside Singapore. Appropriate documents, s, etc. must be annexed.

be made on substantial grounds and not indulge in veiled allegations.

observation form merely requires certain answers


Complaints against advocates and solicitors, which complaint to be frivolous or vexatious, the Inquiry Committee may order the solicitor to pay any person in the proceedings before the Inquiry Committee or direct that the amount be taxed by the Registrar. Such costs shall be a debt due from the solicitor to the

PDR 1989, ChAPteR 7, PARA. 16 DiSCLoSuRe of infoRMAtion to AuDitoRS [RePeALeD]

of the Bar are requested to note that they should be answered “to the best of his knowledge”. full and true of the assets of the deceased’s estate will greatly facilitate the Commissioner’s enquiry, otherwise considerable time may have to be spent examining the taxpayer’s affairs in order to discover these. duty in respect of any property, the able person should submit to the Department a Form true statement of such property including the value

[Society’s Note: Refer to the Legal Profession real property, the form for “Schedule of Immovable Property” should be submitted together with the

by the Institute of Chartered ants.]

PDR 2013, PARAgRAPh 89 - eStAte Duty - DeLAyS in ASSeSSMent [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 17]

A. in respect of deaths which have taken place before 1 January 2002, the following section will apply As a result of representations made to the Society by a number of Solicitors complaining of delays in the 55

reasons for the delay should be stated as this may affect the question of penalty and penal interest. be made to as early as possible. duty, the assistance of the department may be sought to enable some assets to be realised e.g. by release under section 37 or by a

General conditions which are satisfactory to the Commissioner. Additional duty should be incidence of interest to a minimum.

assessment by the Commissioner the penal rate of interest at 12% should not be charged. It is however not always easy to determine whether the blame lies with this department or the taxpayer. of the Bar could assist here by making appropriate representations where the circumstances warrant that the penal rate of interest should not be charged. They are assured that the fullest consideration would be given to their views by the Commissioner. 7. Some items inevitably require the production of furnished as soon as possible, without waiting for a request from the Department. These include:-

together with a letter from the insurance company certifying the amount payable.

A letter from the employer stating the amount due to the deceased at the date of death.

A full list should be submitted together with the estimated value. If the amount is large, a statement from a reputable jewellery dealer certifying the value of the jewellery at the date of death.

A valuation of the shares made by a professional ant together with his basis of calculation should be furnished. s of the companies concerned nearest to the date of death should be attached. A letter from the Company’s Secretary stating the price at which the transaction nearest to the date of death was concluded would also assist in this matter.

A list showing the public quotations or broker’s shares at the date of death.

A Schedule of Immovable Property on Form IR. 312 should be submitted in triplicate showing the full value of each property at the date of death ed if possible by a valuation report made by a professional valuer.

A valuation of the deceased’s share made by a professional ant together with his basis of calculation should be furnished. The s of the business for the year up to the date of death and the two years preceding are also required together with copies of the deceased’s current s with the

If the deceased was a contributor, a statement should be obtained from the Board concerning the amount due. from the date of death should be furnished together with explanations for any large withdrawals and deposits. Similarly the savings books should be forwarded together with explanations for any large withdrawals and deposits. A big withdrawal could represent a gift or other asset created with it. Similarly a big deposit could relate to an asset not disclosed deceased’s current, deposit or savings as at the date of death is required.

Value of household items such as works of art, furniture, refrigerator, radio, television, clothing, etc. should be declared. In case of wealthy persons a valuation made by a ed auctioneer or other

The date of purchase, model, etc. should be indicated together with the estimated value thereof, if possible, ed by a valuation made by a motor car dealer. The registration card of each vehicle should also be forwarded.

A full list of insurance policies should be submitted

56

General Bills,

vouchers,

statements

of

s

of Property/ Supplementary Schedule of Property

and

(allowance is subject to section 27 of the Estate Duty

Forms SC 4, 5 and 6 will be annexed to the Grant of Representation. Deceased died domiciled in Singapore

are urged that when enquiries are received from the Commissioner, they should attempt as far as possible to answer these with the assistance of their clients and thee answers should be as complete as possible rather than wait for the Comptroller to ask obvious queries. Solicitors should not act as mere post boxes between the Commissioners and their clients. Some queries, like those referred to above, can reasonably be anticipated and all queries should be dealt with expeditiously to reduce delays to a minimum.

File Forms SC 1, SC 2 and SC 4 to Subordinate Courts after the petition is granted File Form SC 5 or SC 6 when necessary Deceased died domiciled outside Singapore File Forms SC 1, SC 3 and a list of deceased’s property is granted

B. Subsequent to 1 January 2002, the forms

*the executor or of the

of the Bar who are acting in matters involving estate duty for deaths, which may have taken place on or between 1 January 2002 and 14 february 2008 [estate duty has been abolished with effect from 15 february 2008], can take guidance from gopalan Raman, Probate and istration in Singapore and Malaysia (Lexisnexis, 2nd edition, 2005) at p 215 to 227.

eD), observations form and Schedule of immovable Property (if applicable) to the Commissioner of estate Duties in respect of the following cases:

2. Deaths (where deceased died domiciled in and

“uSe of foRMS foR DeAth CASeS” After the petition for probate/ letters of istration in Singapore is granted by court, the Executor or forms Either to the Civil Registry, Subordinate Courts Or to the Commissioner of Estate Duties

file the following forms to the Civil Registry, Subordinate Courts only when an estate Duty Return to the Commissioner of estate Duties is not required. (see * below) Form SC 1:

Statutory Declaration

Form SC 2:

Check-List (Deceased died domiciled

dwelling-houses in Singapore (not used by any person wholly or partly for any trade, business, profession or vocation except as an more than S$9 million as at the date of death or

all other gifts, amount due from others, tly by the deceased with others and unpaid sale proceeds of property (immovable or date of death or

Form SC 3:

Check-List (Deceased died domiciled the date of death:

Form SC 4:

Schedule of Property

Form SC 5:

Supplementary Schedule of Property

i.

57

Share in Dwelling-house in Singapore used by any person wholly or partly for any trade, business, profession or vocation which was not an approved

General ii. Share in HDB Shop-house / Commercial Property / Vacant Land in Singapore

following in Singapore as at the date of death: i.

iv. Shares in any Private Company / other Unqouoted Shares (not NTUC shares / New Singapore Shares / Economic v.

Unpaid Sales Proceeds of deceased’s Immovable Property including dwellinghouse (option to purchase the property exercised by the buyer before deceased’s or

gift within 5 years before death or at any time but the deceased continued to retain possession or enjoyment of the property within 5 years before death i.

Dwelling-house used by any person wholly or partly for any trade, business, profession or vocation which was not an

ii. HDB Shop-house / Commercial Property / Vacant Land Penalties will be imposed on the Executor or of the Estate who willfully fails to

The relevant forms can be ed here: http://www.iras.gov.sg/irasHome/page.aspx?id=772 [Afternote: Refer to:

Share in any Immovable Property (residential Practice Directions: Applications for grants of probate, letters of istration or resealing of

iii. Shares in any Private Company / other Unquoted Shares (not NTUC shares / New Singapore Shares / Economic Restructuring

Practice Directions: Applications for dispensation

Practice Directions: Filing of schedules of property for non-dutiable estates where death occurred

years before death: i.

Share in any Immovable Property (residential Practice Directions: Filing of schedule of assets for estates where death occurs on or after 15

iii. Shares in any Private Company / other Unquoted Shares (not NTUC shares / New Singapore Shares / Economic Restructuring 3. Deaths (where deceased died domiciled outsider and dwelling-houses in Singapore (not used by any person wholly or partly for any trade, business, profession or vocation except as was more than S$9 million as at the date of death or

Singapore and Malaysia (LexisNexis, 2nd Edition,

PDR 2013, PARAgRAPh 90 inteRnAtionAL LAW ConfeRenCeS - tAx DeDuCtionS ALLoWABLe [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 18] are advised that the deduction does not apply to all International Law Conferences. The Comptroller of Income Tax has stated that each case will be examined on its own merits and only expenses incurred for attending approved International Law Conferences will be allowable as a deduction under 58

General PDR 2013, PARAgRAPh 91 WithhoLDing tAx on inteReSt Law Conference therefore are requested to notify [MoDifieD] the Secretary in writing to enable him to apply to the Commissioner of Inland Revenue for the necessary approval prior to their attending the Conference. International Law Conferences: “Representations have been made by the Law Society of Singapore to the Commissioner of Inland Revenue on the question of the allowances and expenses for tax purposes in connection with attendance by of for information that the Commissioner has advised that the reasonable costs and expenses of solicitors for attending approved international law conferences will be allowable as deductions for income tax. Each case, however, will be considered on its own merits and the right is reserved to disallow expenses in any case where the quantum is not substantiated to be wholly the conferences. Allowance of such expenses will be subject to the following:travelling and maintenance of the solicitor himself

conference, deductions would be limited to those

[Formerly PDR 1989, Chapter 7, para. 19] The attention of of the Bar is drawn to the provisions of section 45 of the Income Tax Act as amended by the Income Tax Amendment No. 2 Act which came into force on the 2nd December, 1975. Before that date there were differing views on the that withholding tax on interest was only payable when the interest was actually paid by a resident of Singapore to a non-resident of Singapore, but the Comptroller takes the view that the liability to deduct withholding tax on interest has always arisen when it is due to the non-resident taxpayer even though it has not been paid. For present purposes, this is an academic argument interest is now deemed to have been paid, although it is not actually paid, if it is reinvested, accumulated, capitalised, carried to any reserve or credited to any however designed or otherwise dealt with on behalf of the other persons. Where interest is received by a solicitor on a client’s monies and is credited to the client’s in the solicitor’s books of the client concerned or reinvested on further deposit on behalf of the client a liability now arises to make immediate payment of withholding tax within seven days of the relevant transaction in the solicitor’s books in all cases where the client is a non-resident. The attention of of the Bar is drawn also to the penalties for breach of these provisions.

e.g. reciprocal hospitality to other delegates during

PDR 2013, PARAgRAPh 92 - CAPitAL ALLoWAnCeS AnD DeDuCtionS on LAW BookS [MoDifieD]

it would be inissible, e.g. if it were incurred as part of the process of acquiring some additional

A. Capital allowances on lawyer’s library

and not qua delegate of some representative body

[Formerly PDR 1989, Chapter 7, para. 20] On representations made by the Law Society, are informed that the Commissioner of practising lawyers are regarded as ‘plant’ and capital allowances are claimable on them following Munby v Furlong, [1977] 2 All ER 953. Such capital allowance can be claimed under section 19 of the Income Tax

some satisfactory evidence of cost.”

59

General With regard to periodicals and journals, the present practice of recognising them as revenue expenditures will continue. Expenditure incurred in purchasing replacement volumes and editions may also be treated as revenue expenditure provided that the replaced volumes and editions have not been granted capital allowances. [Afternote: Refer to Sections 19 and 19A of the Income Tax Act.]

B. Deduction from income tax on Purchase of Law Books [Formerly PDR 1989, Chapter 7, para. 21] It was stated that deduction from income tax was allowed in the case of replacement of law books, but not for the purchase of new law books under section Income Tax Act (Cap 134, Rev Ed. not been claimed as capital allowances under sections

PDR 2013, PARAgRAPh 93 ConfiDentiALity of LAW SoCiety CiRCuLARS [Formerly PDR 1989, Chapter 7, Para. 23] of the Bar are reminded that the Law Society’s circulars are private communications between the Law Society and its . They are not, save in exceptional cases where the Council so resolve, intended for general publication and should not be released by of the Bar to the Press.

PDR 2013, PARAgRAPh 94 RePReSentAtionS MADe By the LAW SoCiety [Formerly PDR 1989, Chapter 7, para. 24] of the Bar are reminded that representations for closed consultations made by the Law Society are obtaining the necessary permission from the Council.

PDR 1989, ChAPteR 7, PARA. 22 – viSiting SiLkS – tAx LiABiLiy PDR 2013, PARAgRAPh 95 - WiLLS [RePeALeD] inQuiRy if Any MADe [MoDifieD] [Society’s Note:


IRAS has informed that with effect from 3 May 2002, the income/fee derived from services performed in

of the Bar are asked to note that as letters enquiring whether a deceased person when alive had made a Will are becoming so frequent, and with a view to saving time, the absence of any replies to such enquiries after a reasonable period should be taken to mean that the deceased person had not made a Will.

subject to:

professional elects to be taxed on net income. NRP would include foreign experts who are either invited by government bodies, statutory boards or private organizations to impart their technical knowhow or expertise in Singapore, Queen’s Counsels, consultants etc. You may wish to visit IRAS website for more information on the withholding tax and the tax obligations of the payer. http://www.iras.gov.sg/irasHome/page.aspx?id=822 In addition, please note that the income derived on or after 3 May 2002 by a non-resident arbitrator for arbitration work carried out in Singapore is exempt

Wills - information Re: It is Customary for solicitors who have been instructed to act in the estate of a deceased person to circulate

may place notices on information on Wills in the Singapore Law Gazette’s section on Notice – Information on Wills. [Society’s Note: To place a notice in the abovementioned section of the Singapore Law Gazette, please write to the Publications Department at the Law Society of Singapore with the deceased payment of S$85.60 per notice made in favour of ‘The Law Society of Singapore’. All submissions must reach the Publications Department by the 5th of the preceding month of publication.]

60

General PDR 2013, PARAgRAPh 96 - tRADe MARkS & CoMPAny nAMeS [MoDifieD] [Formerly 1989 PDR, Chapter 7, para. 28] The Registrar of Companies does not consult the relevant Trade Marks Index kept by Intellectual applications for a proposed new company name and the acceptance of a particular name is not an indication that no trade marks rights exist in it. Applicants are therefore advised in their own interests to avoid possible expense and inconvenience by investigating the possibility that others may have trade mark rights in the names – or parts of such names – they require before applying to the Registry of Companies. Searches may be made at the Registry of Trade Marks and Patents.

PDR 2013, PARAgRAPh 97 - Phone etiQuette [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 29] It is a rule of etiquette that when a solicitor calls another solicitor on the telephone, the person making the call should be ready to receive the person called when the latter answers. Persons who are called should not be kept waiting on the line until the person calling comes on the line. However, this rule need not be followed in cases where it is known that the member called may only be reached through the intermediary of a secretary, in addition to the operator. [Afternote: Refer to 2011 Guide P71 Paragraph 1]

PDR 2013, PARAgRAPh 98 - ChARity PRoCeeDingS [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 30] Letter dated 7th August 1984 from the AttorneyGeneral’s Chambers, Singapore, which is reproduced below for the attention of all of the Bar. “1. Notwithstanding that the Charities Act 1982 as been in force since 1 January 1983, charity proceedings are still taken in the court without having regard to the Act, especially section that no charity proceedings relating to a charity shall be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of the Commissioner of Charities. As a result parties, including the Attorney-General, are

61

required to appear before the Court in charity proceedings which obviously could not be entertained or proceeded with in the court in view waste of time and expenses to the parties involved in the proceedings. 2. I am sure you would agree that the situation is unsatisfactory and should not be allowed to continue. 3. I shall therefore be grateful if you would draw the attention of of your Society to the provisions of the Charities Act 1982, especially those relating to the taking of charity proceedings.” ATTORNEY-GENERAL’S CHAMBERS

PDR 1989, ChAPteR 7, PARA. 31 Mentioning CASeS [RePeALeD] PDR 2013, PARAgRAPh 99 - teLex AnD fACSiMiLe ChARgeS [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 32 and 32(a)] of the bar are informed that the Council has ruled that IDD, telex and facsimile expenses can only be recovered as “disbursements”. Please note that no surcharge introduced on any of these items is allowed as a disbursement. The Council feels that there is a need to standardise charges for faxes especially in the case of overseas faxes because: telephone rates applied to the time the IDD line is occupied in making the fax. SingTel’s measurement of such time, however, often varies with the sender’s estimates. with the time the fax is sent.

General out about halfway through the following month and identifying each fax charge in the bill and time-consuming business.

For instance, there is nothing improper for the manager, ant or cashier of a law practice to sign a letter or document on behalf of the law practice provided he or she uses his or her own name and gives his or her proper designation. This practice extends to the issuance of a law practice’s ing receipts. [Afternote: Refer to 2011 Guide, P184, Paragraph 2]

will enable him to do so. The Council has, upon the request of , reviewed this practice direction and makes the following recommendations:-

PDR 2013, PARAgRAPh 101 - tRAnSfeR of CLientS’ MonieS on DiSSoLution [MoDifieD] [Formerly PDR 1989, Chapter 7, para. 37] In the event of dissolution of a law practice, all

Black and White or Colour Faxes

Overseas Local Recommended Recommended Fax Charge Per Fax Charge Per

should be refunded or dealt with in accordance with the instructions of the clients. No member of the dissolved law practice is entitled to retain clients’ monies without the permission of the clients.

Black and A4 White Fax

$0.15

clients’ instructions should be sought regarding such distribution.

Colour A4 Fax

$1.00

Paper Size

50% of SingTel’s published rate

actual amounts as invoiced by SingTel, he/ she is always entitled to do so. as disbursements.

PDR 1989, ChAPteR 7, PARA 33. - fiRMS’ nAMeS [RePeALeD] [Society’s Note: Refer to Rule 7 of the Legal

solely of initials, but may include the initials or part of the initials of any existing or former proprietor or

PDR 2013, PARAgRAPh 100 - g the nAMe of the LAW PRACtiCe [MoDifieD]

[Afternote: Refer to 2011 Guide, P70, Paragraph 1]

RuL/2/1996 - LegAL CoStS foR the PRePARAtion of A StAtutoRy DeCLARAtion fRoM A venDoR of A PRoPeRty [RePeALeD] PDR 2013, PARAgRAPh 102 - SoLiCitoR on ReCoRD not entitLeD to RefuSe SeRviCe of DoCuMentS [ReiSSueD] [Formerly Council’s Ruling 3 of 1996] Solicitors on record are not entitled to refuse acceptance of service of any documents. They may, however, apply to strike off, expunge or in any way deal with the dilatory aspect of the service or the Service by fax is by consent only and service can be solicitor on record if the solicitor refuses to accept service. [Afternote: Refer to 2011 Guide, P73]

[Formerly PDR 1989, Chapter 7, para. 34] Generally, only a practising solicitor may sign the name of the law practice in a professional communication. However, an unauthorised person can sign on behalf of a law practice so long as he or she does not sign in the name of the law practice. 62

General PDR 2013, PARAgRAPh 103 - eQuity in Lieu of feeS

2. Overcharging.

A. general Considerations for anArrangement to Accept equity in Lieu of fees [Formerly PD/1/2000]

1. Contingency fees

introduction

1.1

A distinction must be drawn between contentious and non-contentious work. There is no prohibition against contingency fee arrangements for non-contentious matters and as such a Law Firm may accept equity in lieu of fees for non-contentious work, even if doing so amounts to a contingency fee arrangement.

1.2

However, in contentious matters, a statutory prohibition exists by virtue of Section 107 of the Act. A Law Firm cannot enter into an agreement to accept equity in lieu of fees in a contentious matter where such an agreement amounts to a contingency fee arrangement. Whilst not all agreements to accept equity in lieu of fees are necessarily contingency fee arrangements, the Law Firm

The Council of the Law Society has been requested to give guidance on the issue of accepting equity in lieu of fees. This was referred to the Ethics Committee, which studied the guidance standards/ opinions of the Law Society of England & Wales and the American Bar Association before making its recommendations to the Council. In making these recommendations, the Ethics Committee considered the fact that circumstances in Singapore differ in many respects and as such, the rules and guidance standards of other jurisdictions, while informative, do not necessarily apply in the Singapore context. After careful consideration, the Council of the Law Society has accepted the recommendations of the Ethics Committee and makes this Practice Direction of the Council, which takes effect from 15 June 2000. The expression “Law Firm” in this practice direction includes a solicitor, a sole proprietorship, partnership, law corporation and its directors, shareholders or employees.

arrangement with the client amounts to one. 1.3

a) What is an arrangement to accept equity in lieu of fees?

One of the factors which may give rise to a contingency fee arrangement is where the value of the shares or share options given to the Law Firm depends upon the successful outcome of the matter on which the Law Firm is instructed to act. It is obviously not possible would give rise to a contingency fee agreement. Each case would depend on its own facts.

It is an arrangement where a client offers and a Law Film accepts shares or share options in the client company itself or in any other company owned by the client either in full satisfaction for legal services provided by the Law Firm or as part of the remuneration for such services. Subject to the matters set out below, in principle, Council does not see any objection to a Law Firm accepting equity in lieu of fees for legal services provided by the Law Firm.

1.4

An agreement where the acquiring of shares is contingent on the outcome of a contentious matter or where the shares are themselves the subject matter of the litigation, would amount to contingency fee arrangement under Section 107 of the Act.

b) issues a Law firm should consider when accepting equity in lieu of fees

1.5

In addition to the above, Council reminds

Council recognises that the pressure to accept equity in lieu of fees is not self-motivated but rather requested for by certain clients. It is a matter, which involves very careful consideration with full recognition of the commercial risks involved apart from any ethical considerations. The Law Firm will have to consider, inter alia, the following issues: 1. Contingency fee arrangements. 63

of the Act in relation to the law of maintenance and champerty. 2. Overcharging 2.1

A Law Firm must consider the requirement of reasonableness of any fee arrangement whether in contentious or non-contentious matters. The equity that a Law Firm receives

General in lieu of fees must be reasonable. Section 109 of the Act refers and particular attention is

may put the Law Firm in a position of may have to consider if it can provide impartial representation or advice to the client. Council notes that the risk of potential

of the Act. 2.2

In determining reasonableness the following factors, inter alia, should be considered:

greatest concern in other jurisdictions and has, in some cases, given rise to litigation 3.2 Where a Law Firm agrees to accept equity in lieu of fees, it should ensure that by doing so it does not thereby put its commercial interests above the interest of the client. The Law Firm should not allow its judgement, objectivity and loyalty to the client to be compromised in any way by reason of its equity involvement.

whether the shares are traded publicly at the time of the fee agreement and if the s hares are not traded, the probability of such shares being publicly traded in the

3.3 The acceptance of a non-executive directorship in the company is not prohibited. Again, in view of the equity participation, a Law Firm including individual of the Law Firm will have to consider issues of

which may affect the value of the 2.3

2.4

2.5

Council notes that there is no judicial guidance as to whether the Courts would look at the value of the shares/share options at the time these are granted to the Law Firm or their ultimate value. This uncertainty could have a bearing on the outcome of taxation proceedings under Section 109 of the Act or when assessing the reasonableness of the agreement to accept equity in lieu of fees. It would therefore be prudent that any agreement between a Law Firm and client for equity in lieu of fees should be in writing. This would reduce the risk of challenge that the agreement was unfair and/or unreasonable. The risk of challenge will also be reduced if the client is advised to obtain independent legal advice on the of any proposed agreement. At the very least the Law Firm should suggest to the client that they should consider taking independent advice and the reasons for doing so. Council notes that liable for failing to advise their clients to obtain independent legal advice before entering into such arrangements.

3.1 The shareholding in the company may affect the future professional dealings between the Law Firm and the client. The shareholding

3.4

The Council would discourage a Law Firm from receiving a substantial share ownership in the company. This will potentially cause a

of interest are relevant and should be carefully considered.

the Law Firm should ensure that there is no risk of

c) other Matters The Law Firm should also bear in mind the prohibition This prohibition would apply equally to shares received by the Law Firm in lieu of fees. Council would therefore prohibit a Law Firm from holding its equity ownership of shares received in lieu of fees in a separate or distinct investment partnership/company

Nothing herein will prohibit a Law Firm from selling any shares received in lieu of fees to any third party for valuable consideration in an arm’s length transaction. The Law Firm should also carefully consider the

64

General income tax and GST implications of receiving equity in lieu of fees.

PDR 2013, PARAgRAPh 104 - uSe of CReDit CARDS


a) Agreements for use of Credit Cards for Payment of Solicitor’s Bills of Costs

B. forming of holding Company to hold and Receive equity ownership taken by the firm in Lieu of fees [Formerly PD/2/2000] 1. This Practice Direction takes effect on 24 August 2000. on 15 June 2000 for the guidance of on the issues to be considered when accepting equity in lieu of fees. 3. The Law Society’s Ethics Committee was recently requested to give guidance on the issue of forming a holding company to hold in lieu of fees and whether to do so would amount

forming such a holding company purely as a vehicle to hold equity received in lieu of fees subject to the following: 4.1. All the shares in the holding company must solicitors

who

have

valid

practising

company must also be solicitors who have in 4.2. Solicitors

who

have

valid

practising

in lieu of fees (to be vested in the holding

[Formerly PD/1/2001] 1. This Practice Direction takes effect from 1 October 2001 on the use of credit cards for the payment of solicitors’ bills of costs. The Council reviewed the retail agreements of MasterCard and Visa to ensure that the of their agreements do not breach any of the provisions of the Act and the rules made thereunder. 2. The Council reviewed the retail agreements of Visa and MasterCard to address the problems service charges. The agreed MasterCard and Visa are described below.

with

2.1. are reminded to review any agreement offered by other credit card companies to ensure their compliance with the rules of the profession. 2.2. You may circulate this Practice Direction to your Bank when communicating with them on the of the agreement you wish to enter with them.

3. Standard Agreed with Credit Card Companies Visa “The solicitor agrees that the Bank may impose a service charge of xx%(or such other rates as may from all sales vouchers presented for payment

5. should make appropriate arrangements to comply with the above in the event of a member ceasing practice and/or upon death.

The solicitor shall not without the written consent of the relevant Cardholder, sell, purchase, provide, disclose or exchange credit card information, including, without limitation, details of cardholders, or information regarding them or their transactions, or regarding the credit card scheme, howsoever obtained and whatsoever the form the same shall take, to any third party (other than to the solicitor’s agents for the sole purpose of assisting the solicitor in his business, or the Issuing Bank, Acquiring Bank or Visa International


such disclosure is required by Law.”

4.3. The above requirements must be complied with at the time the agreement to accept equity in lieu of fees is entered into and when the entitlement to receive such equity, pursuant to the agreement, arises.

65

General PDR 2013, PARAgRAPh 105 APPointMent of A SoLiCitoR oR A “1. The solicitor will within xx bank business days PeRSon eMPLoyeD By A SoLiCitoR present all sales vouchers to the acquiring bank to ACt AS BAiLiff unDeR SeCtion which will arrange for the solicitor’s bank to be 15A of the SuBoRDinAte CouRtS ACt credited with the full amount for such sales (CAP. 321) [MoDifieD] MasterCard

vouchers.

2. The acquiring bank will debit the solicitor with the undermentioned items: payments made in respect of sales vouchers presented for payment, in the preceding xx days/weeks.

[Formerly PD/2/2004] 1

This Practice Direction takes effect on 16 July 2004.

2

The Registrar of the Subordinate Courts has informed Council of his intention to exercise his power under section 15A of the Subordinate Courts authorise a solicitor or a person employed by a solicitor to exercise the powers and perform the duties of a bailiff during such period or on such occasion

at the rate of xx% per annum from the due date until the date of payment on any sum due by the solicitor.

and conditions as the Registrar may determine.” (“the Scheme”)

3. Any billing information cannot be released without the consent of the cardholder.” [Afternote: Refer to 2011 Guide, P162-163]

b) Arrangement for Deduction of Merchant Discount

3

The Registrar has also informed Council that changes would be made to the Rules of Court and a practice direction would be issued shortly.

4

The Council upon careful consideration and deliberation of the issue has ed this practice direction that must comply with when carrying out of the functions as bailiff, if so authorised by the Registrar.

[Formerly PD/1/2002] The Council had published, in the November 2001 of credit cards for the payment of solicitors’ bills of costs. The Council has received that under the acceptance process as practiced by all merchant banks in Singapore, the merchant discount rate law corporation will be paid its bill minus the agreed MDR. In view of this accepting process, the Practice

for that transaction by the acquiring bank and $2 be retained by the bank. The Council will not view this as You may circulate this Practice Direction to your bank when communicating with them on the of the agreement you wish to enter into with them. [Afternote: Refer to 2011 Guide, P163-164]

Note: In this Practice Direction, any reference to includes their employees duly authorised by the Registrar to carry out the functions as bailiff. 5

Professional indemnity

are advised that The Law Society of Singapore’s Compulsory Professional Insurance Indemnity Scheme does not cover a member or any person employed by a law practice in their exercise of the powers and performance of their duties as a bailiff. are urged to obtain their own professional insurance cover for their practices. 6 should be mindful of their ethical duty not of interest. ’ attention is drawn to the PCR, in particular Rules 25 to 31 therein. To preserve independence of the solicitor, Council has decided that a member cannot act as a bailiff under 66

General section 15A of the Act to execute the judgment of a client of his practice. Accordingly, any member or staff of the law practice acting for a judgment creditor cannot be appointed as a bailiff under section 15A to execute the judgment obtained by that judgment creditor. 7 authorised to act as a bailiff under section 15A of the Act to execute the judgment of a judgment creditor, should be mindful of their duty to maintain in

Applicable Law This PD recognises that in the provision of professional services, lawyers may inadvertently assist or facilitate criminals or terrorists in their activities or their cause if lawyers act on instructions of clients without making due and appropriate enquiry on the identities of their clients and the purpose of their transactions in breach of the following laws:

and the execution thereof. ’ attention is drawn to Rule 24 of the PCR. 8

Costs

Notwithstanding the application of section 15A of the Act and the Rules of Court, are reminded that contingency fees are expressly prohibited by section 107 of the Act and Rule 37 of the PCR. should not render any bill, in relation to any work done under this Scheme, which amounts to gross overcharging that will affect the integrity of the profession. 9

Proceeds of Sale

are reminded that the proceeds of sale are not to be paid into their clients’ s as these are All proceeds of sale are to be paid to the Subordinate Court’s Bailiff’s .

must familiarise themselves with these laws which prohibit money laundering and the funding of terrorists and Rules 11D to 11H of the PCR, which took effect as of 15 August 2007 (collectively, the on the summaries of the enactments and the Rules annexed to this PD (respectively as Annexure A and salient features of the enactments and the Rules.

the Scope of this PD This PD sets out directions on how a lawyer/law practice may apply Rules 11D, 11E,11F, 11G and 11H and undertake steps for transactions with heightened must always be vigilant and undertake checks:

PDR 2013, PARAgRAPh 106 - PRevention of Money LAunDeRing AnD the funDing of teRRoRiSt ACtivitieS [Formerly Council’s Practice Direction 1 of 2008]

practice is being used for money laundering/

This Practice Direction of Council takes effect from 15 January 2008 and supersedes the Practice Direction of Council issued on 15 August 2007 on the prevention of money laundering and the funding of terrorist activities.

funds of their client or the veracity/adequacy of

introduction with consent a publication known as “The Anti Money Laundering Manual” published by AFP Consulting In this PD, a reference to a “Part” and “Paragraph” is a reference to a part and paragraph of this PD.

67

about the veracity of the information given to the law practice for transactions especially when instructed to establish business relations or carry out an occasional transaction.

Council’s Power of inspection 4. The Council has the power to randomly carry out inspections of law practices to determine their compliance with Rules 11D to 11H (See Rule

General Annexures to this PD Click on the following links to access the annexures to this PD:

Placement This is the physical disposal of proceeds (usually payment into a lawyer’s client to purchase a

Annexure A – a summary of the laws applicable property. The objective of “placement” is to get the

in Singapore to combat money laundering and

Annexure B – a summary of Rules 11D to 11H. Duty to Report Suspicious transactions 6. must understand their statutory duty to report suspicious money laundering transactions under section 39 of the CDSA and Rule 11G. 7. Rule 11G enacts that a lawyer or a law practice which knows or has reasonable grounds to suspect CDSA “shall” disclose the matter to the CAD or of a suspicious transaction report. For information on lodging a suspicious transaction report, visit the

cash into the non-cash economy. Layering

This is the process of separating illicit proceeds from the sources of crime, by creating complex layers of trail, thus providing the anonymity. For instance, the money launderer client may instruct his bank to pay the “dirty money” in his to his lawyer who, in turn, is instructed to make a series of payments to various parties overseas, in various jurisdictions and/or in multiple commercial transactions (e.g. of “layering” is to make the detection of the “dirty trail and to break the link between the criminal and his/her proceeds of crime. Integration

protection from criminal and civil liability for breach of any restriction on disclosure of information if suspicions are reported even if the precise underlying criminal activity is not known and regardless of whether an illegal activity had in fact occurred. CDSA enacts that when a lawyer submits a suspicious transaction report he is not required to provide any information which is protected by solicitor and client privilege.

A. What is Money Laundering

“dirty money” into the legitimate system as “clean” or legitimate money (hence having successfully the money laundering client to use his cash-rich in a bank to buy over a successful business. The objective is to move the “dirty money” into the legitimate economy in such a way that no one suspects its origin. This is the ultimate objective of every money launderer.

B. Rule 11D – knowing your Client

practice shall implement “reasonable measures” to ascertain the identity of a client before accepting instructions to act in any matter.

which criminals attempt to conceal the true origin and ownership of the proceeds of their criminal activities. If undertaken successfully, it allows them to maintain control over these proceeds and, ultimately, to provide a legitimate cover for their

the three Stages of Money Laundering 11. The process of money laundering is carried out in stages, in the following order:

How client identity is established is set out under Part E. 13. The duty of a lawyer/law practice is to identify and then the identity of a client before starting work on any matter. 14. The identity reliable, independent data/information at the beginning, before the solicitor-client relationship

68

General is established. If a law practice is instructed on

as soon as reasonably practicable the client’s identity in the manner required by Part E. natural person, a lawyer or law practice must take reasonable measures to identify the natural persons that own and control the client. The only exception ministry or department of the Government, an organ of State or a statutory board or a public company listed on a securities exchange or a recognised securities exchange within the meaning of the 16. Therefore, if a law practice has a secretive client who is reluctant to provide evidence to his/ her identity, then the law practice must either refuse the retainer or cease to act. 17. Lawyers/law practices should explain to clients before accepting instructions the compulsory checks which they are required to undertake to establish their identities in their warrant to act or 18. A law practice can create a standard form for use by their lawyers/ staff to indicate when and and information was checked and obtained to satisfy the Rules and this PD.

Reliance on third Parties to Carry out Client 19. A law practice may rely on a third party/ intermediary to carry out a client identity check if the 4 requirements set out below by this PD are met. Examples of intermediaries or third parties

by Council from relying upon. As of the date precluded reliance on any third party/ intermediary. be required or would want to obtain from the third party/intermediary can be relayed to the law practice by the third party/intermediary and willing to provide, without delay, upon the law practices’ request, any document obtained by the third party/intermediary which the law practice would be required to retain under the Rules or this PD. 20. When a law practice relies on a third party/ shall document the basis of its satisfaction that the requirements set out in Paragraphs12 to 15 have been met except where the third supervised by the Monetary Authority of Singapore

21. No law practice can rely on a third party/ intermediary to conduct on-going monitoring of clients. For the avoidance of doubt, notwithstanding the reliance upon a third party/intermediary, the law practice shall remain responsible for compliance with the Rules and this PD including carrying out on-going monitoring of clients as required by this PD.

institutions.

instructions from Agents

The four requirements are as follows:

22. When instructions are from an agent of the client a lawyer/law practice must take “reasonable measures” to ascertain the identity of the principal client before accepting instructions (see Rule

party/intermediary it intends to rely upon, whether in Singapore or abroad, is subjected to and supervised for compliance with anti-money laundering and prevention of recommendations set by the Financial Action measures in place to comply with those requirements. (FATF is a worldwide body consisting of member countries including Singapore which promotes polices to combat

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requires a lawyer to ensure that an agent giving the instructions has the required authority to do so and in the absence of evidence of such authority, to

Determining the Principal Relationship of a Client

and

Agent

23. In determining the principal and agent relationship,

General a lawyer/law practice must establish the following: the client intends to enter into. These factors help a law practice evaluate if it is at risk of being used for money laundering or At Paragraph 28, a list of clients who qualify and

out. Such clients are considered low risk for money

agent and the principal client (as money laundering often takes place in transactions between

has no suspicion of money laundering or terrorist

instructions from Professional Advisers

26. A law practice cannot avoid conducting a client identity check, as the same is necessary to satisfy a law practice/lawyer that their client is not

24. When a law practice is instructed by another professional advisor, the lawyer would not have any right of direct with the client. When a lawyer is engaged by such a professional adviser who has also agreed to pay the fees of the law practice and instructs the practice to act in one of

use a risk based approach, as mentioned in Paragraph 25, to determine the extent and nature of information required to establish and the clients’ identity under Rule 11D only when there is no suspicion of money laundering or terrorist

type of Client adviser to know the identity of their client and the nature and purpose of the business transaction for which the law practice is instructed to give advice.

27. The factors to consider for the type of client that may affect the risk of a lawyer/law practice being include:

C. A Risk Based Approach to “knowing your Client” - When Can it Be undertaken 25. This Part D gives directions as to when a risk based approach to checking a client’s identity can be undertaken, that is, when a law practice can adopt a risk-based approach in determining the extent and nature of information required for it to know its client. This Part must be read subject to

countries with high levels of corruption or where

and Part G (which sets out directions when an enhanced client due diligence check must be

“know your client” checks as it considers adequate to effectively identify and the identity of any client, a natural person appointed to act on the client’s behalf or a natural person who has a ontrolling interest in or that exercises effective control over a client. This PD sets out two factors that lawyers/law practices must consider to make this decision, namely:

unregulated persons.

Categories of Clients Who Qualify for this PD 28. As a non-exhaustive guide, the following categories check unless the lawyer or a law practice suspects that the client is connected with money laundering

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General (other than a holder of a moneychanger’s licence or a holder of a remittance licence, they are subject to requirements to combat consistent with the FATF recommendations

subject to mandatory compliance requirements and supervision for combating money

(i.e. funds are paid in the form of notes and

element. 30. The presence of the risk factors listed in Paragraphs 27 and 29 does not necessarily mean the client or the transaction that you have been engaged to act for will involve a risk of money laundering or

What this PD requires is that every practice must have set internal procedures to check and determine if the risk of such activity is high or low and only if it is low may a lawyer/law practice

is subject to regulatory disclosure requirements

established outside Singapore subject to requirements to combat money laundering

31. Therefore under this PD, every law practice must:

required under the Rules for at least 5years

the FATF recommendations and supervised 32. The document to record its decision to carry out a the following: MAS or incorporated or established outside Singapore subject to requirements to combat consistent with the FATF recommendations client” measures undertaken to identify the client. information on the identity of the client and its

professionals who are subject to requirements to combat money laundering and terrorist recommendations compliance.

and

supervised

for

33. A risk based approach to checking your client’s identity does not apply to reporting of suspicious transactions under the CDSA which lays down suspicious transactions. The risk based approach still requires a law practice and lawyer to undertake on-going monitoring of clients and their retainers so that the lawyer/law practice can identify and act on its suspicions.

type of transactions 29. The factors which may increase the levels of opportunities to facilitate money laundering or

34. To meet the standard of reasonable measures set out in Rule 11D, one has to the identity of a client by establishing: independent source documents, data or

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General of reliable independent source documents,

by way of reliable independent source

Face to face meeting with a client The evidence of identity described below can be sight and taking a copy of the original identity card or international port or driving licence:

control or ownership of a legal person/ arrangement if instructed by such a structure. This may be by way of reliable independent evidence except in the case of a ministry or department of the Government, an organ of State or a statutory board or public company listed on securities change or recognised securities exchange within the meaning of the Securities and Futures Act

address of employer or, if self employed, the name and place of the client’s business. A lawyer or law practice is not required however to reasonable grounds that an individual is nationally or internationally known. In such a case a record of

Introduction 35. A lawyer or a law practice will need to make its assessments as to what evidence is appropriate to ascertain the identity of his/its clients and may do so on a risk-sensitive basis. A number of sources which may help a lawyer or a law practice to make that assessment are outlined below. A lawyer or law practice however cannot avoid conducting client due diligence but can use a risk based approach to determine the extent and quality of information required and the steps to be taken to meet the requirements.

36. As stated at Part D Paragraph 25, a lawyer/law practice can take a risk based approach to determine the extent and quality of checks to identify and a client, having regard to the type of client and nature of the business relationship/ transaction for which the lawyer/law practice is engaged.

or the law practice’s satisfaction about the individual’s identity and address. Inability to meet a client face to face If the client is not resident in Singapore and is unable true copy of the identity document which must provide the information listed above. Where the client does not meet you in person (for example, where the client instructs the lawyer from ensure that the client’s identity and particulars sent to A lawyer/law practice must not accept a fax or photocopied version of identity documents which is

2) Corporate Clients Introduction If a corporate entity is not a public or listed company as

described at page 10 of this PD under the heading “Corporate Clients”.

1) individual Clients - Singapore or foreign Residents

reasonable measures to ascertain the identities of the natural persons that have a controlling interest in or exercise control over the corporate entity. A lawyer /law practice must satisfy himself/ itself that the client is in fact an entity which is duly incorporated

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General under the laws of the relevant jurisdiction in which it

Nominee or bearer shareholders

of incorporation (however note the direction below for

If the checks show the principal shareholders of the company are nominee or bearer shareholders, a lawyer/law practice must determine if the nature of the transaction or its knowledge of or location of the client requires the lawyer/law practice to carry out an enhanced client due diligence check to determine who

and principal shareholders. Principal shareholders are persons or bodies who own more than 25% of the shares in the body. A risk based approach to a corporate client’s identity As described in Part D, a lawyer/law practice can apply a risk based approach when deciding on the extent and nature of the enquiries to be undertaken to obtain the information concerning the identity of a client. This also applies to directors and principal

that there is little or no risk of money laundering suspicions of the same, it may obtain information on information available on the corporate client’s website publicly known source that is reliable. As a non-exhaustive guide, a lawyer or a law practice is not required to the identities of directors and principal shareholders of a corporate entity and/ or undertake further enquiries where the principal shareholder of the corporate entity is another company directions set out in Part D Paragraph 28.

are. This enhanced due diligence check will involve the lawyer/law practice carrying out an evaluation of the money laundering risk associated with the transaction and the client. Please also refer to Part G for directions. If a decision is made by the lawyer/law practice that any enhanced due diligence check to determine the identities of the holders of the nominee or bearer shares is not required, then a written note on why that Private and unlisted overseas companies For overseas companies, the same particulars as required for a Singapore ed private company must be obtained. If you cannot obtain the necessary documents from an equivalent body to our ACRA in a particular foreign country, you can have that person/body responsible in that foreign country for the regulation of companies or by another professional. As directed above, companies with nominee or bearer shares could pose money laundering risk and if the foreign company is incorporated in a country with no regulations than those set by FATF, an enhanced client due diligence described in Part G may be required.

Private companies incorporated in Singapore For a Singapore ed private company, an company is duly incorporated in Singapore and to obtain the directors and shareholders and its ed address. The documents obtained from ACRA must the identities of the directors and the principal

If after applying the risk based approach, you decide that there is no suspicion of money laundering or

3) Singapore ed Partnerships and Limited Liability Partnerships Partnerships The identity of the partner instructing the law practice and one other partner must be established with

If the client is a subsidiary company of an existing address of the partnership. that it is up to date, then evidence of the subsidiary will only be required subject to the check to the identities of the directors and shareholders of the subsidiary company. 73

Limited liability partnerships The identity of the partner instructing the law practice must be established.

General with the Commissioner for Charity and for societies, the Registrar of Societies. Singapore LLP is duly ed and its trading address. Overseas ed partnerships and limited liability partnerships The identity of the partner instructing the law practice and one other partner must be established with For an overseas LLP, a lawyer/law practice must satisfy itself that the client is an entity duly ed under the laws of the relevant jurisdiction and establish the identity of the partner instructing the law practice. As in the case of overseas companies, if a particular foreign jurisdiction does not have an equivalent body to our ACRA, you can have the partnership’s identity foreign country that regulates partnership businesses or by another professional. A lawyer/law practice can also, after applying the risk based approach, decide that there is no suspicion of check.

4) trusts

before accepting the retainer are reminded that charities do not fall within of the natural persons that have a controlling interest or exercise effective control over the charity must be

7) Singapore Co-operatives If you are instructed to act for a co-operative society, you must check the registration particulars of the cooperative or check the same with the Registrar of Coobtain the names of the of the committee of accepting the retainer.

8) Management vorporations If you are acting for a management corporation of the MCST before accepting the retainer.

9) estates

Before acting for a trust, a lawyer/law practice must, ascertain the identity and particulars of each trustee

If you are instructed to act for an estate, you must

the nature of the trust.

deceased.

As trusts are convenient vehicles for a variety of purposes, from tax planning, to criminal concealment and money laundering, they are considered as “high risk”. Please refer to Part G for further directions.

You must also obtain the relevant identity documents to establish the identities of the executors or s of the deceased estate and where

5) Attorneys

letters of istration or probate.

If you are acting for an attorney, you must identify both the principal and the attorney.

take reasonable measures to ascertain the identity of a client as soon as reasonably practicable before accepting instructions to act in the matter. If a law practice/lawyer is unable to complete its client due diligence measures as soon as reasonably practicable, it shall not act for the client in

A law practice must cease or refuse to act for a client who gives a power of attorney in favour of any person without any apparent reason and refuses to explain why a power of attorney is given and/or is reluctant to provide the identity documents of the attorney.

6) Singapore Charities, Clubs and Societies If you are acting for a charity or a society, you must check that the registration number for the charity or society or club is correct. For charities, you check

38. A law practice/lawyer can however establish business relations with the client before completing

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General determines that the law practice can effectively manage the risk of money laundering and

and a full “know your clients” check required by the Rules and this PD must be done.

of the identity of the client is essential in order not to interrupt the client’s normal conduct of business and there is little risk of money

or director of the law practice can waive the full “know your client” check subject to a risk assessment of the client If there are no suspicions

(For example, prior to the completion of provide substantial advice, or draft any transaction documents for the client, or receive monies for the of the client in anticipation of completing the transaction or receive monies for the of the client to transfer to any other party (other than does not apply to a lawyer/law practice that is in the course of ascertaining the legal position of the client or performing its task of defending or representing its client inor concerning legal proceedings including

is known to him/her and his identity has been checked must be signed by the proprietor/partner/ the length of time the proprietor / partner or director has known the client and the nature of the referral to the law practice (for example, through

“know your client” details on the opening of a new matter subject to a risk assessment of the client as described above and provided the lawyer/

g. Circumstances When a Law Practice Must Carry out enhanced Client Due Diligence

and no suspicion of money laundering or A lawyer/law practice should consider why there has if such delay has been caused by the client. Consideration should be given to whether that itself gives rise to a suspicion which should be disclosed

e. Categorisation of Clients 39. A law practice must adopt the following four categorizations of clients subject to a review of the 27 and there are no suspicions of money laundering

existing clients who have not been in with the law practice for

43. Set out below in Parts H and I are directions when a law practice must pay attention not only to the identity of a client but also check the nature and purpose of the business relationships between the client and other party to the transaction instructed and/or source of wealth of their client. A lawyer/law practice must also carry out enhanced client due diligence whenever it has suspicions of relation to higher risk clients such as non-resident clients, legal persons or arrangements such as trusts that are vehicles for holding personal assets or companies that have nominee shareholders or shares in bearer form. This PD does not prescribe the enhanced client due diligence checks to be carried out. Appropriate checks a lawyer/law practice may consider are the following:

years and who have not on those occasions and

.

the client matter. 75

General h. Acting for a”Politically exposed Person”

by FATF as an individual who has been entrusted with prominent public functions in a foreign country (for example, a head of state or

provider. 52. The law practice must retain for no less than 5 years after the end of the matter the documents used to ascertain the identity of the client as

establishing the Source of Wealth of a “Politically exposed Person” executive in a state owned company or important

this PD. 45. Where the client is a PEP, a law practice must obtain senior management approval to act for such a client or when a client is subsequently found management” so it is for each law practice to decide who that will be in its practice. Senior management may include a managing partner/director, head of practice group and or the direct supervising partner or director of the practice.

53. A lawyer/law practice should normally establish the source of wealth of a PEP by asking clients questions on the source of their funds and wealth. For some types of such clients, their salaries and sources of wealth will be publicly available.

i. the Dubious Client 54. If a client is a known or suspected triad member, introduced to the lawyer by any such persons and where a lawyer or law practice has reason to suspect that such a client may be associated with or engaged in money laundering practices, then such a client is dubious and under these circumstances, a lawyer or law practice should not accept the retainer.

46. The law practice must next take reasonable steps t o establish the source of wealth or funds of such a client at the time of the instruction. 47. The law practice must also check when instructed and on an on-going basis the nature and purpose of the business relationship the practice is instructed to act for this PEP. 48. If a law practice is instructed to act for a legal person or body and discovers that the person with the controlling interest or effective control of the

J. Rule 11f - knowing your Client’s Business Relationship 55. The Rules require a lawyer/law practice to obtain “satisfactory evidence” on the nature and purpose of the business relationship with the client in the matter and any other party when accepting instructions and on an on-going basis when

must take reasonable measures to establish the source of funds or source of wealth of this person.

how to identify a “Politically exposed Person” 49. An acceptable process under this PD for a lawyer/ law practice to identify a PEP is to have regard to information in its possession or which is publicly known, so as to determine if the client is a PEP or is a legal person or body controlled by such a person.

company, corporation, partnership, society,

50. A lawyer/law practice is not required under this PD to conduct extensive investigations to establish whether a person is PEP. 51. If a law practice has reason to suspect a client is a PEP, it can use an Internet based search engine for the purpose to obtain news or information or decide if it considers it appropriate to conduct an electronic search through a reputable

of business having regard to the complexity of the matter, quantum involved any apparent economic or lawful purpose of the matter and 56. The requirements to know your client’s business

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General arise as these are common types of transactions when lawyers could inadvertently assist or facilitate criminals or terrorists in laundering activities.

obtaining Satisfactory evidence as to the nature and Purpose of a Business Relationship 57. A lawyer/law practice must take a broad view of the term “business relationships” as enacted in the Rules to be inclusive to cover both the relationship between the lawyer and his client and between his client and other parties to the transaction/

transactions will arise when large cash payments are made for the purchase of the interest in land whose value is far less, or the method of funding is unusual such as funding from a third party who is not a relative or known to the buyer, or there is an absence of any logical explanation from the parties why the property is owned by multiple owners or by nominee companies. Multiple ownerships could be sophisticated money laundering vehicles to disguise the true owner and or confuse the audit trail.

Managing Client’s Money, Securities or other Assets or Bank, Savings or Securities s

five types of Matters under Rule 11f(1)

is to satisfy himself that the practice has enough information to know the nature and purpose of the business relationship of a client and other party to the transaction for which the practice is instructed to act. Such information must be known not only at the time of instruction but on an ongoing basis as the matter proceeds under his care or that of the law practice. There can be changes to instructions and/or changes to the relationship between the client and third party that could give rise to real suspicions or risk that the law practice activities. 59. Therefore information obtained by the lawyer/law practice to determine if there is any risk/threat of being used to launder the proceeds of crime or fund terrorism activities. A law practice then may have to decide if it should cease to act and if it transaction report under section 39 of the CDSA.

Acquisition, Divestment or Any other Dealing of Any interest in Real estate to check the client’s business relationship whenever there is any acquisition or divestment of real estate or any other dealing with any interest phrase “any other dealing of any interest in real estate” in the Rules a lawyer must take steps to know the client’s business purpose and relationship whenever any interest in real estate such as a lease or licence or any equitable interest is granted.

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check the business relationship if a lawyer/law practice is requested to manage client’s moneys or other assets or s. are reminded that under the SAR and Legal Profession to accept payments into his client on behalf of a client or accept cash or deposit money with his practice. The directions to prevent a client of a law practice being used to launder money are set out in Part H.

Creation of a Legal entity or Legal Arrangement or Acquisition, Merger or Sale or Disposal of a Business entity practice to be alert that the formation, merger, acquisition of any legal entity or arrangement including a company, corporation, partnership, society or trust or the purchase and sale of companies/businesses, its assets or shares and trusts is a common method of laundering the proceeds of crime or the services they provide may constitute or facilitate a dealing with a terrorist’s property. 64. A company structure is particularly an attractive vehicle for money launderers because of its ability to obscure true ownership and protect assets of the entity at little expense. Lawyers/ law practices undertaking company/commercial work must carefully consider, on the basis of risk, the level of information they require before accepting instructions for the creation, operation or management of a company or acquisition, merger, sale or disposal of a company, trust or other business entity particularly if instructed to form a company or business entity in a foreign

General country. The law practice must consider if it requires information on the purpose of the company trust or charity or why a certain structure has been proposed to set up the company or trust or legal entity. It will be particularly important to clarify with the client the reasons for the creation of a company or business in a foreign country.

deduction from wages and the scheme rules do not permit the assignment of a member’s

65. Lawyers/law practices must take particular care and exercise heightened scrutiny when dealing with off-shore trusts which are ed in tax haven countries with strict banking secrecy

there is no acquisition, divestment or any other dealing or management of any moneys, property, assets, securities, bank, savings or securities with the client and any

or substantial association with any transaction

that do not have requirements to combat money with the FATF recommendations and supervised for compliance.

or letters of istration as a personal

a decree of nullity or divorce or custody /access of

directions for compliance by a lawyer/law practice are set out in Part P.

types of transactions Which Qualify for Relationship” Checks 66A.When a law practice is instructed to act for any other type of matter other than that described in Rule 11F, a lawyer/law practice may undertake relationships” and transactions checks as it deems

exceed S$20,000.

k. Duty to Carry out on-going Due Diligence 68. Under this PD, a lawyer/law practice must conduct on-going monitoring of a business relationship on an appropriate risk basis by:

instructed to act, provided that the lawyer/ law practice has no suspicions of money laundering

throughout the course of the retainer(including ensure that the transactions are consistent with the lawyer/law practice’s knowledge of the client, his/their business and overall risk

67. As a non-exhaustive guide, the following business relationships and transactions qualify for relationships and transactions unless a lawyer/ law practice suspects that the transaction is connected with money laundering or terrorist

that may suggest money laundering or terrorist

intellectual property rights, including but not limited to trade mark, patents and ed designs in Singapore or elsewhere

the client due diligence process is kept up to date and relevant particularly for higher risk categories of clients and business relationships or as described in the Rules and this PD.

recordals of registrable transactions and the

L. Law Practices to establish Policies, Procedures and Systems to implement the Rules and Council’s Practice Direction superannuation or similar scheme that where contributions are made by way of

69. To ensure that it has “reasonable measures” to stablish client identity, a law practice must develop internal policies, procedures and controls, 78

General including adequate management controls set by the proprietor, partners or directors of the practice to implement this PD. The procedures and controls set should be audited by the law practice to ensure they are carried out by staff and lawyers. 70. Parts C, D, H and I set out requirements when t he law practice must carry out what is described as “enhanced” client due diligence at the time of instruction and monitored on an on-going basis. These are when the client is a PEP or is a a country which does not apply/partially apply the FATF recommendations or when the law practice is instructed to act for a matter that fall within the of Rule 11F or it receives cash of more than S$100,000 to the client or the transaction gives rise to the suspicion of money laundering/ 71. A law practice must put in place systems, procedures and controls to be able to determine the above risk factors before proceeding with the client’s instructions and ensure that the required enhanced client due diligence is carried out or the client’s source of funds is established or senior management approval to establish a client relationship is obtained as required by this PD. 72. A law practice must also have on-going staff training on the rules of practice to combat money laundering. One way to ensure on-going staff training is for lawyers and law practice staff to attend the Law Society’s continuing professional development training programmes in this area.

M. Money Laundering threats from new and Developing technologies 73. Lawyers/law practices must pay attention to any money laundering threats that may arise from new or developing technologies that favour anonymity of identity of persons. Law practices must take measures to implement policies and procedures to prevent their use in money laundering schemes. 74. Therefore, systems, procedures and controls of a law practice must be reviewed from time to time to take into any money laundering threats that can arise from new or developing technologies.

n. Record keeping, ompliance Procedures

Retention

and

75. Lawyers/law practices must retain documents used to ascertain client identity records under Rule 11H for at least 5 years after the last transaction is completed. It would also be prudent for law practices to keep evidence of the enquiries they

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made on identity and the responses they obtained from clients. For example if money or securities are held, law practices must retain the documents which establish the identities of the legal and or deposited. 76. In relation to the 5 matters under Rule 11F on which lawyers must raise queries on the nature and purpose of the business relationship, the practice must retain the documents to establish the identity of the client and the documents to establish the intended purpose and business relationship between the client and third party of the transaction 77. These documents are to be given to competent authorities such as the police and Council when it carries out an inspection under Rule 11l (see must be produced subject to refusal of disclosure of information/documents if it involves a breach of solicitor and client privilege recognised under section 128 of the Evidence Act

o. Client and Cash 78. This PD requires that a lawyer/law practice must not accept payments in actual cash(that is, funds more than S$100,000 into its client for any one transaction without the law practice determining the source of funds of the client. 79. For each client, a lawyer/law practice must also make a risk assessment if the practice should accept any client’s money in a client’s for which the lawyer/law practice does not know the source of funds. 80. A law practice’s client is an attractive means for money launderers in the “layering” process as described in Part B. Lawyers/law practices must always ensure a client’s is used for genuine legal transactions. 81. Lawyers/law practices must be suspicious when arge sums of money are to be paid by cash into their client when there is no apparent legal reason to do so. This can occur when a client requests to retain large sums for himself/itself, pending instructions in the absence of a proposed transaction on which the law practice has been engaged to act for or in his/its behalf or if the client requests the lawyer/law practice to serve which is not connected with any transaction on which the law practice has been engaged to act for the client or in his/its behalf.

General 82. The Rules require a lawyer or law practice to refuse to open a client’s in the name

P. Suspicious transactions transactions)

(“Red

establish business relationships when there is no apparent economic or visible lawful purpose from persons from countries which do not apply FATF

flag”

the law practice must then as far as possible examine the background and purpose of the transaction/relationship.

83. A transaction is suspect if it there is no apparent regard to the following factors:

87. Lawyers/law practices must take particular care and exercise heightened scrutiny when dealing with off-shore trusts which are ed in tax haven countries with strict banking secrecy place requirements to combat money laundering

the client. the matters a lawyer/law practice must check when instructed to act. A lawyer/law practice must not only check the identity of the client but must also obtain evidence to satisfy itself as to the nature and purpose of the business relationship entered into by the client and any other party to the transaction for which the practice is instructed. For example, where a law practice is instructed to act for a client in a transaction where a substantial sum is being paid for an asset, which is clearly worth much less than the amount is paid for it, and there is no credible reason proffered for such transaction, an examination must be carried out by the lawyer/ law practice to satisfy Rule 11F. The inquiries and

recommendations.

Q. Conclusion 88. If a client is unable to provide an adequate, satisfactory and credible explanation in response to an appropriate enquiry, that inability by itself to impute criminal activity on the part of the client. It simply means that further enquiry is required, and where responses are not credible, or the lawyer’s suspicions are not adequately allayed by the responses, a lawyer should not accept any further instructions from the client. [Afternote: Refer to: Money Laundering and Terrorist Financing” (Singapore Law Gazette

evidence its compliance with Rule 11F in the event of an inspection by Council. 84. Transactions which are complex, unusual and large or have unusual patterns are suspect and a lawyer must examine the background and purpose made by the lawyer/law practice must be set out in writing to evidence compliance with this PD in the event of an inspection by Council. 85. A transaction has suspicious features and must be investigated when no discernible reason for using the law practice’s services are provided. For example, a client located in another country where the service required could be readily obtained at the same or lower cost, and at equivalent or better standard, seeks the services of a Singapore law practice.

Practice (Singapore Law Gazette Checklist” (Singapore Law Gazette, December

PDR 2013, PARAgRAPh 107 engAgeMent of A Book-keePeR unDeR the LegAL PRofeSSion (SoLiCitoRS’ S) RuLeS [Formerly Council’s Practice Direction 1 of 2011] 1. This Practice Direction takes effect on 1 August 2011 and shall apply to all law practices that wish to engage a book-keeper. The book-keeper may

86. If a lawyer/law practice is instructed by a client or deals with persons including companies and

providing book-keeping services or an individual pursuant to Rule 11A of the SAR. 80

General A sole proprietor, managing partner or director of any such law practice must apply annually in writing to the Council of the Law Society The application must be accompanied by the relevant Statutory Declaration. See paragraphs 3B and 4B of this Practice Direction. Upon written approval by Council, the law practice may engage the approved book-keeper to keep the cash books, ledgers and journals and such other books and s required by Rule written up and reconciled in accordance with Rule 11 of the SAR. 2. Criteria for a Book-keeper Who is an individual or a Person (“Relevant Person”) Who Provides Book-keeping Services to a Law Practice on Behalf of a firm or Body Corporate (other than an ing firm or ing Corporation or ing LLP) Such a book-keeper or relevant person must satisfy the following criteria:

in a, b & c above, the book-keeper or relevant person must also have at least one year’s experience in writing up the books and s for a law practice. For a book-keeper or relevant person who does not the book-keeper or relevant person must have at least s for a law practice.

3B. Contents of the Statutory Declaration A law practice that engages an individual or an ing sole proprietorship or any other soleproprietorship providing book-keeping services to write up the books and s must submit two weeks prior to the engagement a Statutory Declaration

4A.Book-keeping by an ing firm or an ing Corporation or ing LLP

2.2 be independent, that is, not an employee, parent, 2.3 he, or in the case of a relevant person, the proprietor, managing partner or managing director required statutory declaration to Council on an annual basis or whenever there is a change of 2.4 if he has not completed the mandatory bookkeeping course as prescribed by Council, undertake to complete the said course within 12 months of being so appointed.

4B. Contents of the Statutory Declaration ing corporation, ing LLP, or any services to write up the books and s must submit two weeks prior to that engagement a Statutory Declaration to Council in the form as shown below Practice Direction 2 of 2007 is superseded by this Practice Direction with effect from 1 January 2012.

individual and of a Relevant Person 2011 until 31 December 2011, the SAR and Practice Direction 2 of 2007 shall continue to apply to any law practice holding conveyancing money or anticipatory conveyancing money that was deposited into the law practice’s client before 1 August 2011.

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General SD 1

SPeCiMen StAtutoRy DeCLARAtion Where proposed book-keeper is an individual or an ing sole proprietorship or any other sole proprietorship providing book-keeping services do solemnly and sincerely declare that:

employment 1. I am a proprietor of a book-keeping business known as……………. whose place of business is ……….……. is attached as exhibit marked ‘A’.

Declaration of independence 2. I……………… am not an employee, a spouse, a child, an adopted child, a step-child, a sibling or a parent of the proprietor / any partner / any director of the law practice to which book-keeping services will be provided by me. I undertake to inform the Council in writing immediately if there is any change to the above.

oR I ………………… providing the book-keeping services to the law practice possess the following required under Rule 11 of the Rules for the following law practices:

oR

writing up the books and s required under Rule 11 of the Rules for the following law practices:

Mandatory Book-

keeping Course

4. I ………..……… providing the book-keeping services to the law practice have completed the book-

oR I………….. providing the book-keeping services to the law practice have not completed the bookkeeping course and I undertake to complete the prescribed course within 12 months of my being so appointed.

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General undertaking 5.1 I hereby undertake to inform the Council of the Law Society, in writing immediately if I encounter any of the following issues in writing up the books and s of the law practice except trivial breaches due t loss to the client: the bank statements for all or any of the law practice’s client s, conveyancing s or

and

5.2 I further undertake to inform the Council of the Law Society in the event the law practice draws from a client a sum exceeding S$30,000.00 without a second signatory. AND I make this solemn declaration by virtue of the provisions of the Oaths and Declarations Act and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular. DECLARED at Singapore This day of 20 Before me, A Commissioner for Oaths

SD2 SPeCiMen StAtutoRy DeCLARAtion Where Proposed Book-keeper is:

and sincerely declare that:

employment

attached as exhibit marked ‘A’.

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General Declaration of independence company/LLP is a spouse, a child, an adopted child, a step-child, a sibling or a parent of the proprietor / any partner / any director of the law practice to which book-keeping services will be provided. I undertake to inform the Council in writing immediately if there is any change to the above.

3. I / the following person……….……… providing the book-keeping services to the law practice possess the as exhibit marked ‘B’.

oR I/ the following person ………………… providing the book-keeping services to the law practice possess s as required under Rule 11 of the Rules for the following law practices:

oR I / the following person …………..……… providing the book-keeping services to the law practice have the following law practices:

Mandatory Book-keeping Course I/ the following person ………………… providing the book-keeping services to the law practice has/ have

oR I /the following person ………………… providing the book-keeping services to the law practice has/ have not completed the book-keeping course and I/ we undertake to complete/ to ensure that such person completes the prescribed course within 12 months of my/ our being so appointed.

undertaking 5.1 I hereby undertake to inform the Council of the Law Society, in writing immediately if I or any bookkeeper encounters any of the following issues in writing up the books and s of the law practice and did not result in any loss to the client: the bank statements for all or any of the law practice’s client s, conveyancing s or

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General

5.2 I further undertake to inform the Council of the Law Society in the event the law practice draws from a client a sum exceeding S$30,000.00 without a second signatory. and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular. DECLARED at Singapore This day of 20 Before me, A Commissioner for Oaths ____________________________________________________________________________________

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Retained Practice Directions CounCiL’S PRACtiCe DiReCtion 1 of 2010 - unDeRtAkingS ReQuiReD of A LAW PRACtiCe unDeR SeCtion 78(1) of the ACt

A copy of the Law Society’s draft Order of Court is annexed to this Practice Direction. has been struck off the roll of legal practitioners

This Practice Direction sets out the requirements for Law Society for different categories of prospective employees.

undertakings That the prospective employee:

Court is required if a solicitor wishes to employ or remunerate any person, who to his knowledge is an undischarged bankrupt or has been:

[position employed], [to set out scope of work] and that such work would be duly and practice’s money, whether it be in respect of otherwise. undischarged bankrupt or falls within the other

Miscellaneous Offences (Public Order and Nuisance) Act

the Act:

undertaking Subordinate

That the prospective employee would not have dealings with the law practice’s money, whether it

Courts Act section 73 of the Supreme Court of Judicature Act

or otherwise. Notwithstanding the above, the Society may the law practice as may be appropriate depending on the circumstances of the case.

required to be made by [originating summon]s and served on the Law Society of Singapore and the Attorney-General’s Chambers. The application

[Afternote:

proprietor, managing partner or managing director

Refer to the following link on Law Society’s website:

from the prospective employee.

h t t p : / / w w w. l a w s o c i e t y. o rg . s g / f o r M e m b e r s / R e s o u r c e C e n t r e / R u n n i n g Yo u r P r a c t i c e / StartingaPractice/ComplianceMatters/ EmploymentofStaff.aspx]

The originating summons should provide for a prayer for the Court to make an order as follows: “… for an order as appears in the draft thereof enclosed herewith. Any further or other orders”. applications, the Council of the Law Society would require the law practice (namely, the sole proprietor undertakings which must be incorporated in the

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Retained Practice Directions PDR 1989, ChAPteR 6, PARAS. 11(A) AnD (B) - CALLing CARDS – SoLiCitoRS a) Calling Cards - Solicitors To dispel any doubts which may exist in the minds of of the Bar with regard to visiting cards, the Council has decided that a calling card may contain the following particulars:-

The attention of of the Bar is drawn to paragraph 4 of the Society’s circular dated the 28th November, 1970. It is emphasized that although the

The Council’s attention has been drawn to the fact that in some cases the Chinese version either of the the individual concerned may indicate the nature of the profession of the card holder. Those who make use of a Chinese version of a calling card should ensure that the rules are observed. In respect of calling cards of of the Bar the Council has decided that there is no objection to the member stating therein his or her professional case. You are reminded however that the cards must not be distributed indiscriminately to friends and acquaintances of the or used in any other circumstances which could be construed as a breach etiquette of the Singapore Bar 1936. The Council has recently ruled that may be described as a Notary Public and/or Commissioner for Oaths where appropriate in their calling cards.

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signs, etc].

Retained Practice Directions in the high CouRt of the RePuBLiC of SingAPoRe Originating Summons No. __________ of 201_______

And In the Matter of the application by M/s___________________ for consent of the High Court of the Republic of Singapore to employ and remunerate _____________ (NRIC

oRDeR of CouRt BefoRe the honouRABLe in ChAMBeRS JuStiCe __________________ UPON THE APPLICATION by the abovenamed M/s__________________ by way of Originating

M/s__________________ and the State Counsel from the Attorney-General’s Chambers and Counsel for the Law Society of Singapore AND UPON M/s_____________________ providing the following undertakings*:

it iS heReBy oRDeReD thAt consent be given by this Honourable Court to M/s as a_________________. His/her scope of work shall be as follows:

Dated this ________ day of ____________ 201__

ASSiStAnt RegiStRAR *Delete if inapplicable

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Retained Practice Directions PDR 1989, ChAPteR 7, PARA. 25 - SoLe PRACtitioneRS - ARRAngeMentS foR ContinuAnCe of PRACtiCe The attention of any solicitor who practises on his own without partners is drawn to the necessity for making in advance appropriate arrangements to ensure that in case of accident, illness or death, his practice can be carried on without undue interruption to the affairs of his clients. of the Bar are referred to the recommendations issued by the Council of the Law Society of England in 1974 which set out in full at pages 40 - 43 the recommended steps which solicitors practising on their own should take. A copy of the Law Society of England’s Guide is reproduced for your information:19:4 “A solicitor who is in practice on his own without partners owes a special duty to his clients to ensure that in case of accident, illness or even death, his practice can be carried on without undue interruption to their affairs. If the solicitor has made no arrangements in advance to may arise in the conduct of his clients’ business, in connection with the solicitor’s own affairs and in his compliance with any necessary Law Society regulations. 19:5 The circumstances for which a solicitor practising on his own would be well advised to make provision in advance are as follows:

A solicitor should have a standing arrangement with another solicitor near at hand who should be prepared on receipt of a call for assistance, if to manage the practice until its principal returns. The Law Society has no power to appoint a solicitor for this purpose. It will be necessary for the principal to notify his bank in advance of these arrangements so that the incoming solicitor behalf of the principal and so avoid the interruption of clients’ business. A special negligence policy should also be arranged to cover the incoming solicitor during his given to the insurers of the principal.

A solicitor practising on his own would also be well advised to make suitable arrangements for another solicitor to ister his practice where

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reason other than for short periods of time. Here again, the degree of supervision required will depend on the circumstances.

It is desirable that a solicitor practising on his own should make a will. It is not necessary for him to nominate a solicitor as his executor or one of his executors, although, if he does so, this would certainly facilitate the conduct of the practice after his death. Whether or not a solicitor is appointed as one of his executors, the testator should have clear instructions of the executors to make arrangements immediately following his death for a practising solicitor to be nominated to carry on the practice pending its disposal.

on the Death of the Sole Practitioner

to appoint a practising solicitor to run the practice. The Law Society has no power to appoint save where s. 13 of the Solicitors Act Arrangements for remuneration of the appointed solicitor are a matter between him and the estate.

not manage or control the practice in the absence of a practising solicitor in charge and if no practising solicitor can be found, have to be closed down and clients asked to make other arrangements. Clearly, this should only be a last resort and every effort must be to act as manager, if necessary with the help of the local law society in the area. of the arrangements made for the continuance of the practice. The Society must also be practice of the its disposal.

and arrangements

ultimately made for

he was sole principal, and he must under the Registration of Business Names Act.

Retained Practice Directions conduct of the practice by the appointed solicitor.

immediately following the principal’s death and should be kept as the managing solicitor’s books until the practice has been disposed of and clients’ money received after the date of death and before grant of Probate is obtained should be placed in a special client’s suspense .

of his death in practice either in his own name interest of his former clients may be jeopardised if the persons entitled to constitute themselves the solicitor’s legal personal representatives fail the apply for and obtain a grant of representation in respect of his estate within a reasonable time after the date of his death.

Note: The practice adopted by the various banks may differ in minor respects from that set out above. The solicitor taking over the practice of a deceased solicitor will be responsible for ensuring that he complies with the requirements of the particular banks concerned. In case of doubt he should refer to the Society under reference E6330B.

The court has power in the exercise of the discretion conferred upon it by s. 162 of the Supreme Court of Judicature (Consolidation) Act, 1925, as amended by s. 9 of the istration of Justice Act, 1928, to make an order for the grant in respect of the deceased’s estate to issue to a nominee or nominees of The Law Society. The grant will be general or limited as the court thinks expedient in the circumstances.

It will be necessary for the appointed solicitor to supply an ant’s report in respect of the practice up to the date of death of the late principal and a separate report in respect of his own holding of clients’ money as manager

Solicitors Act,

ceased to hold it. This report will be additional to that required in respect of his own separate practice.

that the Council may appoint an agent to take over and distribute documents and to control clients’ money under the of Schedule 1 of the Solicitors Act, 1957, as substituted by the Solicitors Act, 1965. The Council are empowered to take this action either -

and the disposal of the practice, if the managing solicitor carries it on with the help of the staff of the deceased solicitor, he must personally exercise effective control over that staff and he must himself supervise the

1. Where they have reasonable cause to believe that the personal representatives of a deceased solicitor practising before his death in his own name have been guilty of dishonesty or undue delay –

period, the manager will conduct the practice remuneration agreed to be paid to him, to the estate. If the arrangement continues beyond the executor’s year it will be necessary for the manager to report the circumstances to the Society and obtain authority for him to continue the arrangement giving reasons why it is necessary for the arrangement to be continued in this way, e.g. because it is desired that a relative of the deceased is to take over the practice upon his ission as a solicitor in the near future. the manager wishes to buy it, the managing solicitor should not also act for the executors but should arrange for them to be independently represented.

solicitor’s practice, or that solicitor was sole trustee or cotrustee only with one or more of his clerks or servants, or 2. Where the deceased sole practitioner before his death was subject to the provisions of Schedule 1 to the Solicitors Act, 1957, as substituted by Schedule 1 of the Solicitors Act, 1965.” [Afternote: Refer to 2011 Guide P168-171 Paragraph 2]

intestate, a similar arrangement will obtain but it is for the next of kin to authorise the

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Retained Practice Directions PDR 1989, ChAPteR 7, PARA. 26 - StAtuS of ASSoCiAteS The Council has received a number of enquiries from solicitors wishing to describe themselves as Associates that a solicitor who is not a partner may be described keeps separate s and produces an ant’s etc. signed by the Associate are signed in his own name as such. An Associate’s letterhead should also make it clear to persons dealing with him that they individual with whom he is associated.

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Miscellaneous Queries Raised in Relation to the Solicitors s Rules 1985. the Solicitors s (Deposit interest) Rules 1970 and ants Report Rules 1985 - guidelines issued by the Solicitors s Rules Committee and the Council

is a valid reason for not carrying out the required reconciliations. Council recognises that there may be instances where by operation of Rules 8 and 9 of the ant’s Report Rules 1985 the relevant ing period for the purpose of Section

PDR 1989, MiSCeLLAneouS SeCtion, QueRy 1 - Ant RePoRt RuLeS 1985

month. However, the examination under Rule

1. Question: With respect to solicitors who cease

solicitor concerned has complied with the provisions of the Solicitors’ s Rules 1985. Further examination may be necessary and this is

Answer: Yes. 2. Question:

perform a reconciliation of the ledger balance, to bank balances on only one date considering the following:

1989 PDR, MiSCeLLAneouS SeCtion, QueRy 2 - SALARieD PARtneRS The Council takes the view that, if a salaried partner’s

be strictly adhered to, there will be four dates of reconciliation. ants Report Rules since partners resign during the year and this could lead to delays.

Answer: have been complied with. In the situation Council will be entitled to exercise its power under Rule 12 but Council notes:

from which the Solicitor retires is not necessarily the same as itted.

and is itted just after the commencement of the ing period of another just as it may be that the retirement and ission are in which case it may not be possible to carry out the required reconciliations. Each case as to be considered on its own merits.

There is no distinction in law between him and any other partner. The fact that he is receiving his share domestic arrangement between him and his partners: he therefore is equally liable to the public, his clients, with the other partners, and in these circumstances the ant’s Report Rules apply to him and he must deliver an ant’s report.

1989 PDR, MiSCeLLAneouS SeCtion, QueRy 3 - SoLiCitoR’S S (DePoSit inteReSt) RuLeS 1970 Question:

2 of the above Rules. Is rule 2 to be applied to the sum of all balances belonging to the same client, when each balance is in a separate client current as each balance pertains to a different legal matter? For example, a solicitor is handling four different legal matters for the same client and client’s money relating to each matter is recorded separately in four different client current s. Individual balances in each of these four s are below $5,000 but in total, the sum of all the balances exceed $5,000 and was held in a current for more than four months. Does this constitute a breach of rule 2?

Answer: Rule 2 of the Solicitors s (Deposit “Subject to rule 4 of these Rules, when a solicitor holds or receives money for or on of a client, the solicitor shall -

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Miscellaneous deposit in a bank repayable on demand in the

Our client has instructed us to put the monies into

the client or the matter concerned, and to Solicitors’ s Rules 1985. equivalent to the interest which would have deposit in a bank repayable on demand as Provided that a solicitor shall not be required so to deposit or to to a client for interest or to pay interest to a client unless -

receipt are such that he knows that the sum of money so received will not, within four months thereafter, be either wholly disbursed dollars and the sum of money so received is not in fact within such period so disbursed or reduced.” be that the solicitor should apply Rule 2 including the provisos, to each sum of money received for or on of a client, be it in respect of one matter or several matters, at the time of receipt of such sum. The solicitor should, therefore, deal with the sum is applicable. Such sum, for instance if less than $5,000-00 at the time of receipt and therefore not deposited at interest thereafter is not to be considered in aggregation with any other sum received for or on of that same client at a subsequent time, for the same or other matters. The reply to the question in the second paragraph would be that the solicitor in the example given is not in breach of the said Rule 2.

1989 PDR, MiSCeLLAneouS SeCtion, QueRy 4 - SoLiCitoRS S RuLeS 1985

Answer: The Council is of the view that, prima facie, as stakeholder’s monies is clients’ monies within Solicitors s Rules 1985, it must be paid into a bank . As a stakeholder, the solicitor ordinarily gets the interest unless it is agreed that the stakeholding interest goes to the client or the other party. 1989 PDR, MiSCeLLAneouS SeCtion, QueRy 5 - RuLe 7 of the SoLiCitoRS S RuLeS 1985 - PAyMent into CLientS’ AnD offiCe S The Council has adopted the following rulings recommended by the Solicitors s Rules Committee. are requested to note them.

Question: Can a solicitor pay sums received as costs render a bill for any part of the work done in a matter?

Answer: not be rendered - where the money is expressly paid to him “as business undertaken or to be undertaken”. Rule Situation where a bill or written intimation needs to be rendered - where the fee has not been agreed but costs have been incurred and a bill or written intimation had been delivered in respect Situation where the sums received as costs cannot or written intimation is rendered. - where work has not yet commenced, and the

Re: Query Concerning opening fixed Deposit With finance Company Question: We have taken over the conduct of a matter whereby we are required to hold as stakeholder, a balance sum of money for a period of time.

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once costs have been incurred and a bill or written intimation delivered, the money may be withdrawn from the clients

Miscellaneous

Question: Can sums received as costs and of clients ?

Answer: Costs - Yes, sums received as costs can be placed

However, if the cheque in question is restrictively crossed i.e. a “non-negotiable”, payee only cheque, in favour of the third party, the solicitor will then have no control over and cannot manipulate the money included in such a cheque which cannot be banked into a client . In fact, the solicitor cannot dispose of the cheque in any other way except to it on to the third party. In such a case, is the solicitor still required to make any entry in the transfer records and the client ledger if there are adequate

Answer:

incurred and a bill or other written intimation of the amount of costs has been delivered for Disbursements - Yes, sums received on and for the payment of disbursements can be if it amounts to “money received in reimbursement of money expended by a solicitor on behalf of a

only mean a cheque or draft payable to bearer or to the solicitor himself as otherwise it cannot be indorsed by the solicitor. A cheque or draft payable to the client or a third party is not covered by this Rule and is not client’s money because it is not money received or held by the solicitor. It is not covered by Rule 11. money is not paid into a client (i.e. a bank books must be kept to show such dealings.


Question: Interest on stakeholder money placed on deposit .

Question: Cash or cheques received by a solicitor

Stakeholder money is no doubt client’s money which

but which is immediately endorsed or paid to a third

As you will be aware, this is a very common practice particularly in conveyancing where such money may through a number of solicitors before it is paid into the payee’s . such money to pay the same into a client . In such a case, no entry would be made in the client things, all dealings with client’s money received, held client’s cash book or transfer records and in a client ledger. In the application of these Rules, is it correct to state and cheque which is not restrictively crossed (e.g. a the solicitor has control over and can manipulate the money so received? If this is so and if the cash or cheque is not paid into a client , entries should still be made in the transfer records and the client ledger?

deposit . If the solicitor is entitled to retain the interest earned on stakeholder money in accordance with the ruling adopted by the Council of the Society, such interest is therefore not client’s money. In practice most solicitors treat interest on stakeholder money as their entitlement only when the matter has ing on the interest earned to their clients in certain cases. To preserve the principal and cumulative interest applicable to each matter, it is more convenient to roll over both principal and interest on each expiry date although this may have the implication of leaving non client’s money in client . Upon completion of the matter, the principal will be paid over to the if the solicitor is to retain the interest in accordance with the Society’s ruling. In this case, would the treatment of principal and interest be in order and is it still necessary for the solicitor to advise his client when he is making a interest earned?

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Miscellaneous Answer: Money received by the solicitor as a stakeholder (in connection with his practice as a credited to the particular client for whom the solicitor is acting but to a separate stakeholder . This is because the money does not belong to the client or to the other party until after the happening of the contingency. If the money is deposited at interest the interest belongs to the solicitor (in the absence of earned it should be paid to the solicitor and not paid into the client . If it has been inadvertently paid into the client it must be transferred out without delay. Where a deposit is “rolled over” the interest earned is added to the original deposit and the aggregate amount is deposited at interest. The interest is money to which the only person entitled is the solicitor himself and is therefore not “client’s money”. Rule 6 will be breached by rolling over in cases where the solicitor is entitled to the interest earned by depositing client’s money at interest. The Council considers the

solicitors. The Question has been re-phrased, hopefully to identify the real issue.

person on whose a solicitor holds or receives ‘clients’ money’. Therefore if only the solicitor, whether as a sole proprietor or a partner, is entitled to the subject money, then for the purposes of dealing with such money under the SAR.

permitted under SAR

[For the avoidance of doubt, this does not apply to conveyancing money.]

which he is partner.


at all, or is not the only person entitled, to the subject money, then for the purposes of dealing with such money under the SAR.

Question: Please let me have your ruling as to

whether:-

SAR 2, and

The Council expresses no views as to whether a solicitor may be regarded as his own client for any purpose other than that of the SAR. monies into his clients’ in a matter record.

Answer:

As the query seems to be concerned with the Solicitors’ s Rules, 1985 give its views solely in the context of the SAR and its

which he is a partner?

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Guidance Notes 2013 gn/1/1989 DeBt CoLLeCting DeMAnDS foR CoStS [RePeALeD]

Electronic mail is a communications system. It is particularly suitable for short communications and for the sending of documents that can be printed by the recipient.

gn 2013, PARAgRAPh 1 - ethiCS AnD infoRMAtion teChnoLogy must comply with any relevant directions [MoDifieD] of the Council about correspondence with regard to the use of e-mail. In particular, e-mails should not

[Formerly Council’s Guidance Note 1 of 2001] 1. This guidance note takes effect from 1 October 2001 and is an attempt to provide with both ethical and practice guidance on the use of IT in their practice.

its correspondence. E-mails should identify the sender

2. introduction

and this guidance note.

The advance of technology has impacted on the practice of law.

Under r. 8 of the PCR, a lawyer must ‘exercise proper supervision over his employees and other staff. The

The

proper supervision of all staff over the use of e-mail in their practice.

Law

Society’s

Ethics

Committee

(‘the

has reviewed the practice guidelines on ethics and IT recently issued by jurisdictions such as the United States, Canada and England. In recognition of the ever evolving nature of technology and legal practice, the guidelines, contained herewith, and the Council invites comments and at any time and, where appropriate, the guidance can be This guidance note covers the following topics:

iv. online referral and introduction schemes. 3. general are reminded that when considering these guidelines, they must have reference to the current editions of the Act, the PCR, the PR, SAR and the Practice Directions of the Council. are also advised to be aware of the laws against software piracy and not use, in their practices, any unlicensed software.

is used as a communication system that the system is checked regularly for incoming e-mail and e-mails are distributed promptly to recipients. There should day or more. It is also recommended that a record of all outgoing electronic means. Finally, it is also recommended that, as a matter of courtesy to a fellow lawyer, important or urgent messages, notices or documents are not sent

and receiving of private e-mail, giving legal advice or opinions via e-mail, sending privileged documents via e-mail and adequate supervision for incoming and outgoing e-mail.

maintain anti-virus software to ward against such risks.

Under r. 24 of the PCR, a lawyer must not disclose law corporation. 4. e-mail

of the retainer or contents of documents recording clients’ instructions. Therefore, care must be taken to protected.

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Guidance Notes 2013 is an insecure medium that may be subject to possible interception by hacking or inadvertent disclosure.

maintained by the Registrar of the Supreme Court and the Council of the Law Society. must have a place of business at which clients may meet their lawyers and where mail and telephone calls

encrypted e-mail or secured lines.

not allowed.

secured nature of communication via e-mail, then the of his client on the use of e-mail as a means of communication.

The PCR do not require you to meet your clients ‘face not meet its client. It is advisable and, at times, may

e-mail message. It is recommended that the warning not have the burden of considering whether to include the warning in each email sent.

e-mail guidance note is as follows:

their client’s identity and their legal capacity. In the case of taking instructions from an agent, there is an obligation under r. 23 of the PCR for the lawyer to ensure there is evidence of the agent’s authority to act on behalf of the client. In the absence of any evidence, the rule requires the lawyer must ‘within a the client’.

legally privileged. It is intended solely for the person to whom it is addressed. If you are not the intended recipient, please notify the sender, and please delete the message and any other record of it from your system immediately. Giving professional undertakings via e-mail via e-mail, it may not be apparent on the face of the e-mail if the purported sender sent the undertaking. accepting a professional undertaking via e-mail and to take steps to that the purported sender had in fact sent the undertaking given via e-mail. 5. Practising Law on the internet

Client care The requirements of the PCR on the standards of adequate professional service apply when lawyers conduct their clients’ businesses on the internet. Accordingly the clients must receive adequate information on costs, progress of the case, e-mails must, with reasonable dispatch, be responded to and proposals of settlement and positions taken by other parties explained in a clear manner. 6. Payment of Legal fees by Credit Card The Council has approved the use of credit cards for

that payment of service charge is not deducted from

thereunder do not prohibit a lawyer practising law via

no sharing of fees with an unauthorised person. Please refer to the Council’s Practice Direction on the use of credit cards. 7. Publicity and s 33 of the Act

practising lawyer to declare the ‘principal and any other address or addresses at which he practises in Singapore’. This information is recorded under s.

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Under the PR, publicity conducted through the internet is subject to the rules that govern publicity in Singapore.

Guidance Notes 2013 tool or to provide generic legal information that can be accessed by the general public or clients of the law that it could give rise to attendant obligations and risks appropriate disclaimers. Given the further liberalisation of the PR, with the website can be hyperlinked to a client’s or third party’s website, subject to the general principles described in rr. 6 and 7 of the PR. If legal advice is given or a document is prepared and be aware of the of s. 33 of the Act. Authorised client requested you to prepare a letter of demand threatening legal proceedings for a debt owed and requested the same be dispatched to them via e-mail to enable them to forward the same to the debtor via e-mail, you should refuse to do so. 8, online Referral and introduction Schemes Under the Act, it is an offence if a lawyer has ‘tendered or given or consented to retention, out of any fee for having procured the employment in any legal employment of himself or any person to whom any remuneration for obtaining such employment had been given by him or agreed or promised to be so

person for referring work to them. The participation in any internet referral schemes which requires the law referred would be a breach of the Act. Even if no fees are paid or shared, any participation in an online introduction service or referral service carried out in such a way as to ‘unfairly attract work’

The Council has also ruled that it is improper for a law for merely referring work to it. The Council has ruled that this would be tantamount to “brokering”.

gn/1/2003 - guiDeLineS on PRevention of Money LAunDeRing AnD the funDing of teRRoRiSt ACtivitieS [RePeALeD] gn/2/2003 - guiDeLineS foR the APPointMent AnD ReSPonSiBiLitieS of ASSigneD CounSeL in CAPitAL CASeS [RePeALeD] [Society’s Note: Refer to the latest guidelines on for appointment and responsibilities of assigned counsel in capital cases on the Supreme Court website at the following link : h t t p : / / a p p . s u p r e m e c o u r t . g o v. s g / d a t a / d o c / ManagePage/84/LASCO%20Guidelines%20 Revised%20wef%201Dec2012.pdf]

gn 2013, PARAgRAPh 2 - PRoviDing WeLfARe ASSiStAnCe to CLientS [Formerly Council’s Guidance Note 1 of 2004] On 5 October 2004, Council gave guidance to two law practices that enquired on the extent of welfare assistance they could give their clients whilst they pursued their legal claims. The law practices wished to lend moneys to their clients who were foreign workers on special es to help them meet their daily living expenses. Council advised the practices that lending moneys to clients will put a lawyer in a position of personal debtor relationship with his client and the debt owed in this case would be re-paid only if the client’s case was either settled or paid. Council also advised the practices that if the matter was pending litigation, allegations of maintenance and champerty could be made against the practice. Law practices should direct clients who are foreign workers to appropriate organizations that can provide welfare assistance to them.

gn 2013, PARAgRAPh 3 - StoRAge of DoCuMentS in eLeCtRoniC foRM [Formerly Council’s Guidance Note 1 of 2006] 1. This Guidance Note takes effect from 1 June 2006, supplements the 1999 Practice Direction of Council which dealt with the period of retention


The Guidance Note sets out in an answer and question format general guidelines to be

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Guidance Notes 2013 considered when law practices decide to store their documents in electronic form.

available when needed. b. There should be a proper system for:

This Guidance Note does not lay down any rigid form or style on how the electronic documents should be stored and in what medium they should be stored. as the case may be, has been photographed or

2. Should I keep all clients documents? The return to clients of documents that belong to them should not be left to be dealt with only upon the termination of the retainer. It is prudent to periodically review and arrange for the return of clients’ documents on a regular basis or when the documents are no longer required.

iv. preserving and indexing the negatives or the

All clients must be briefed on the procedure for the storage, return or destruction of documents at the commencement of the retainer or it should be stated in the letter of engagement.

5. What procedures should be adopted for the storage of photographically or electronically stored documents?

3. Can I store documents photographically or electronically and destroy the originals? All original documents of a client should not be destroyed without the express written permission of the client or owner.

operator of the negatives as copies of the

The Law Society recommends that the following guidelines be considered when planning for the storage of photographically or electronically stored documents: a. records retained/captured in electronic form must be accurate to ensure it is not lost or altered in any

Where the retainer has been completed, bill paid, and practice may store it on a CD ROM, computer system Direction. When in doubt whether to destroy any document, the client’s or owner’s written permission should always be sought. If it is not possible to obtain such permission you will have to form a view and evaluate the risk. When seeking the client’s or owners’ permission to documents, you may wish to reserve the right to make a reasonable charge for preparing copies if they are later requested. 4. What procedures would be recommended for the storage of original documents in electronic or photographic formats and then the originals are destroyed?

b. the electronic storage system must have an audit trail to capture all transactions on the said system c. the electronic storage system must not allow for editing/alteration/deletion of stored electronic d. there must be reasonable image and data security, back up and recovery measures to ensure that the electronic record/image and other data associated e. there must be checks/validation to ensure that the f. electronic records/images must remain retrievable in the event of a change/upgrade of IT systems or g. there must be precautions in place to prevent

The Law Society recommends that a law practice considers the of the Evidence Act and the following guidelines before the destruction of the originals:

h. the electronic storage system must be able to provide for complete display and printing of all information associated with an electronic record /

a. Written evidence of the destruction of the original

i.

preserved in case oral evidence is no longer 99

there must be internal controls adequate to ensure reliability, integrity, accuracy, completeness and availability of the electronic storage system.

Guidance Notes 2013 6. Outsourcing of storage systems. Before commencing on outsourcing, the following risks of outsourcing electronic storage systems should be considered and evaluated: a. Due diligence should be carried out to determine an outsourcer’s viability, capability, reputation, b. all outsourcing arrangements be appropriately documented by means of a written outsourcing

protected

by

entering

into

nondisclosure

outsource partners in jurisdictions that generally d. outsourcing agreements must be terminable in the event that the outsourcing partner: i.

goes into liquidation, receivership or judicial management, becomes insolvent, or undergoes

4. The Council of the Law Society was recently asked for guidance on whether a partner of a limited liability law partnership or a director of a law corporation could place money in the client of such a law practice when the only person entitled to the money was a partner or director of the LLP or LLC. 5. The Council noted the current Rule 2 as drafted in the Rules seemed to permit the deposit of moneys in the client even if the only person entitled to it was a partner or director of a limited liability law partnership or a law corporation. 6. The Council accepted the guidance of the SAR Committee that the fact that a limited liability law partnership or a law corporation is a separate legal person from its partners or directors did not make the principle that a lawyer must not mix moneys he alone is entitled to with “client’s money” of the law practice any less applicable. 7. The Council has therefore decided to propose to the Honourable the Chief Justice to amend Rule money” to read that it “does not include moneys to which the only person entitled in the case of a sole proprietorship, the solicitor himself, in

iii. has demonstrated deterioration in the ability information.

partnership, one or more of its partners and in the case of a law corporation, one or more of its directors”.


gn 2013, PARAgRAPh 4 - DePoSit of MoneyS in the CLient of A LAW PRACtiCe [Formerly Council’s Guidance Note 1 of 2008]

8. The Council’s guidance to is not to deposit in their law practice client moneys to which the only person entitled is a partner or director of a limited liability partnership or a law corporation.

1. Under Rule 2 of the Legal Profession (Solicitors’

[Society’s Note: should note that the

“client’s money” does not include money held or received on of the trustees of a trust of which the solicitor is solicitor-trustee or money to which the only person entitled is the solicitor

already taken into Council’s proposal in paragraph 8 above.]

2. Therefore money that belongs only to a proprietor or sole director of a law practice or one or more and cannot be deposited in the law practice’s client . 3. The basis for the rule is that a lawyer must separate money belonging to him from money belonging t

gn 2013, PARAgRAPh 5 - CLientS’ PReSenCe in ChAMBeR heARingS [Formerly Council’s Guidance Note 1 of 2009] Council has had discussions with both the Supreme Court and the Subordinate Courts about relaxing the practice of not permitting Parties other than lawyers to appear for chambers hearings. Council Representatives pointed out that many chambers form or substance.

100

Guidance Notes 2013 3. The result of these discussions is that the Courts

hearings are closed hearings (see Singapore Civil

discretion for the hearing Judge or Registrar. wishes to be present for a chambers hearings, the lawyer concerned should apply to the Judge or Registrar, for permission for the client to be present. The decision whether or not the client will be permitted will be determined by the hearing Judge or Registrar on a case by case basis. 4. of the Bar should consider such an application in cases where their clients may have a vital interest in the outcome of a particular hearing in chambers, for instance, in family cases where ancillary matters are usually the real substance of the dispute.

information that needs to be disclosed by the applicant for the purpose of the application and in order for the court to determine if he is fully rehabilitated to practice and should be replaced on the roll as a matter of public interest and public 5. This has led the Court in Kalpanath Singh s/o e, good practice to make full disclosure of all relevant information in all future applications for replacement on the roll. This was to remind the applicant of the need to furnish all relevant information in his/her application. 6. The Council of the Law Society in consultation with the Attorney-General, sets out in Paragraph 7 below the information that ought to be disclosed replacement on the roll under section 102 of the Act. This is to bring to the attention of the Court information pertaining to the grounds for


gn 2013, PARAgRAPh 6 - RePLACeMent on RoLL of SoLiCitoR Who hAS Been StRuCk off [MoDifieD]

other things, disclosure of the following: 6.1

[Formerly Council’s Guidance Note 2 of 2009]

against the applicant in any jurisdiction at the time of the removal/striking off and

1. This Guidance Note takes effect on 20 November 2009.

roll the name of a solicitor who has been removed from, or struck off, the roll.

limited to any conviction or sentence to 6.2

101

if there was/were any subsequent disciplinary or other criminal or civil jurisdiction after the removal/striking off

the procedure to be complied with for an application for replacement on the roll. The application is to be made by originating summons summons is to be served on the Society who shall appear before the hearing and place before the court a report which shall include copies of the record of the proceedings leading to the solicitor being struck off the roll and a statement of the facts that have occurred since the solicitor was removed/struck off the roll which in the opinion of Council or any member of the Council are relevant to be considered or to be investigated in connection with the application.

if there was/were any pending disciplinary

but not limited to any conviction or 6.3

if the applicant is an undischarged

6.4

if the applicant has entered into a composition with his/her creditors or a

6.5

if the applicant has one or more outstanding judgments against him/her in any jurisdiction amounting in the

Guidance Notes 2013 aggregate to $100,000 or more which he/ she has been unable to satisfy within six months from the date of the earliest 6.6

if the applicant has been found under section 7 of the Mental Disorders and Treatment Act (Cap 178, 1985 Rev. Ed. under section 25C to be impaired by reason of his physical or mental condition, or who, having been ordered by a Judge to submit to a medical examination under section 25C to be conducted within such period as the

including the Mental Capacity Act 2008 unsound mind and /or incapable of managing himself/herself and/or his/her 6.7

if the referees opining to the applicant’s or by the solicitor’s physical or mental condition, to such extent as to be unable to

6.8

if the applicant is incapacitated by illness or accident or physical or mental condition which is relevant to his/her rules made under section 72”.

6.9

the period that has transpired between the date the applicant ceased practice to the date of the application.

6.10

if the applicant’s right to practice in any other jurisdiction is subject to any

2. Where a solicitor to whom section 25A of the Act applies, makes an application for a practising Attorney-General or the Council may request the

subject to such conditions as the Attorney-General or the Council may specify.

has been stopped.

gn 2013, PARAgRAPh 7 - APPLiCAtion foR PRACtiSing CeRtifiCAte When SeCtion 25A of the ACt APPLieS [MoDifieD]

3. A practice year is the period from 1st April in any calendar tear to 31st March in the next ensuing calendar year. Pursuant to rule 3 of the

[Formerly Council’s Guidance Note 1 of 2010] year may be submitted only from 1st March

This Guidance Note sets out the procedure to be when section 25A of the Act applies.

“This section shall apply to any solicitor – submitted to the Society must be accompanied by payment of the annual subscription and contribution to the Compensation Fund, and the imprisonment in any civil or criminal

5. When section 25A of the Act applies, the Council will, upon receipt of the application for approval

102

Guidance Notes 2013 the Act. The Society will write to the AttorneyGeneral’s Chambers to enquire if they intend to the Act. The Society will subsequently write to inform the Registrar whether the Council or the AttorneyGeneral’s Chambers will be making an application

has written to inform the Registrar of the position of the Council and the Attorney-General’s Chambers.

of the practice year, a solicitor to whom section 25A of the Act applies, is to submit to the Society a “Notice of Intention to Apply for

Accordingly, based on discussions with the F Board and the Ministry of Manpower, a law practice should ensure that its practice training contract observe the following guidelines, so as to maintain the status of practice trainees as non-employees: The practice training contract should make it clear, in letter and in spirit, that it is only for the training of the practice trainee in accordance with the relevant legislation. A standard clause should be incorporated in all practice training contracts as follows: “This practice training contract is governed by the Legal Profession Act and the rules made thereunder. The duties and obligations of the Singapore law practice under this contract are prescribed by the Legal trainee shall perform his or her duties and obligations in accordance with the Rules and guidelines.”

The form of the “Notice of Intention to Apply for Law Society’s website at http:// w w w. l a w s o c i e t y. o r g . s g / f o r M e m b e r s / R e s o u r c e C e n t r e / R u n n i n g Yo u r P r a c t i c e / A pplyingforPractisingCertificate/ ApplicationForms.aspx.

The other clauses in the practice training contract should not, either in letter or in spirit, contradict the standard clause in paragraph 4.2 above. There should also be no derogation of the standard clause in other parts of the practice training contract. In particular, apart from the payment of any honorarium,

7. The solicitor concerned will still be required to submit to the Society, from 1st March (preceding

the practice trainee in the practice training contract. Clauses which suggest that the practice trainee is an employee of the law practice, such as provisions

upon receipt of the ‘Notice of Intention to Apply

contract and the duty of the law practice to exercise effective supervision over its employees, should also be avoided.

the Act and the Society will write to the AttorneyGeneral’s Chambers to enquire if they intend to the Act.

The use of the term “allowance” or “remuneration” should be avoided in the practice training contract. Instead, the word “honorarium” should be used.

gn 2013, PARAgRAPh 8 - ContentS The practice training contract should not state that of PRACtiCe tRAining ContRACtS your work” or words to this effect. Instead, it should [ReiSSueD] and supervise training”, and that there will be a supervising solicitor.

[Formerly Council’s Guidance Note 3 of 2010] This Guidance Note sets out the guidelines for law practices concerning the contents of practice training contracts. Under the previous pupillage system, pupils were not considered employees of the law practices which trained them. The introduction of the new practice training contract regime in 2009 is not intended to be conceptually different from the pupillage system in this aspect. 103

The Council of the Law Society is currently exploring with the Inland Revenue Authority of Singapore income tax issues arising from practice training contracts and will issue a further guidance note on these issues, together with a full sample training contract, in due course.

Guidance Notes 2013 gn 2013, PARAgRAPh 9 - infoRMing A 5. If the client consents to taxation or if the Court orders taxation, it is preferable for the solicitor to CLient of hiS Right to tAxAtion oR RevieW of A fee AgReeMent [Formerly Council’s Guidance Note 1 of 2012] to his client shall not preclude the solicitor from presenting a bill for a larger amount or

1. This Guidance Note takes effect on 24 April 2012. 2. This Guidance Note sets out the relevant principles on the scope of the duty of a solicitor in informing a client of his right to have the Court tax the bill of costs (including an interim

entitled to such amount as is allowed by the Registrar, notwithstanding that such amount may be more than that claimed in any previous bill of costs delivered to his client.

whether contentious or non-contentious. 3. All solicitors “should act on the basis that they can have their bills of costs taxed under the law” and “have an obligation to inform their clients of this option”: Law Society of Singapore v. Andre Ravindran Saravanapavan Arul, [2011] 4 SLR The Court in ARSA was of the view that “[a] solicitor who offers to have his bill taxed is … unlikely to have the frame of mind or intention to overcharge his client”. 4. If a dispute arises on a bill or a query is raised about a bill in a contentious or non-contentious matter, the solicitor must inform the client in writing of his right to apply to Court to have the bill taxed or to review the fee agreement. In this regard, the Court in ARSA noted at paragraph 32 that:

6. Where a solicitor believes that a client knows or reasonably ought to know of his right to have the Court tax the bill of costs or review the fee agreement, for example, where the solicitor had informed the client of this right in a previous retainer, the solicitor may decide not to inform the client of this right. However, all solicitors should have regard to the words of the Court in ARSA at paragraph 33 that solicitors who “fail or omit to [inform their clients of the option of taxation] do so at their peril”. 7. In complying with this Guidance Note, all solicitors should: their clients or mediation

“Even where a bill rendered by a solicitor is prima facie excessive, any potentiality of the solicitor’s conduct in rendering that bill being regarded as professional misconduct in the form of overcharging can usually be remedied or ameliorated by an offer to have the bill taxed (if

through (such as

negotiation the Law

and

120.

The Law Society of Singapore v Tan Thian Chua, [1994] SGDSC 11 at [5], where the solicitor was merely reprimanded and ordered to pay the costs incurred by the Law Society in the disciplinary proceedings as, inter alia, his bill, although excessive, had been accompanied by an offer of taxation in the

gn 2013, PARAgRAPh 10 - guiDeLineS foR hAnDLing of CLientS’ fiLeS When A SoLiCitoR LeAveS A LAW PRACtiCe to PRACtiSe in AnotheR LAW PRACtiCe

an aggrieved client to determine what the proper fee is for the actual work done by his lawyer, and for the lawyer to avoid having to face a disciplinary charge for overcharging. If the bill is not taxable, the prudent course is for the solicitor to negotiate a mutually acceptable amount or even offer mediation.”

1. This Guidance Note takes effect on 16 October 2012.

[Formerly Council’s Guidance Note 2 of 2012]

2. This Guidance Note applies to both the law Current Law Practice with the intention to practice as an employee or member of another law practice

104

Guidance Notes 2013

being handled by the Exiting Solicitor should continue to be managed when the Exiting Solicitor intends to leave the Current Law Practice. 4. The guidelines are based on the following principles: 4.1.The primary consideration in all cases is that the Exiting Solicitor and the Current Law Practice must act in the best interests of the Client and ensure that the Client’s interests are not prejudiced by the Exiting Solicitor’s leaving the Current Law Practice. 4.2. The Client has at all times the right to decide on the law practice that will represent the Client, which could be the Current Law Practice, the New Law Practice or a third Law

Client of the Exiting Solicitor’s proposed departure. If this is not possible, the Current Law Practice or the Exiting Solicitor may unilaterally should be professional and especially should not the Client has an obligation to retain the Exiting Solicitor’s New Law Practice or that the Client has an obligation to stay with the Current Law in accordance with the principles stated in paragraph 4 above. 9. If the Current Law Practice is instructed by the Practice or to the Third Law Practice, the Current Law Practice should expressly acknowledge this instruction and facilitate the transfer of the PCR. 10. If the Current Law Practice receives no instructions

a professional manner of the Exiting Solicitor’s order to decide on the law practice that will represent the Client. 4.4. The Client is the client of the Current Law Practice and the Current Law Practice has a right to retain the Client. 4.5. The Exiting Solicitor must comply with Solicitor may owe to the Current Law Practice despite leaving the Current Law Practice.

guidelines 5. Where the Exiting Solicitor intends to take the following steps should be followed. 6. The Exiting Solicitor must inform the Current of the intention to leave the Current Law Practice. Law Practice would be unethical. 7. Unless agreed between the Current Law Practice and the Exiting Solicitor, the Exiting Solicitor must not remove lists of Clients’ names and addresses or other proprietary information from the Current Law Practice. 8. The Current Law Practice and the Exiting Solicitor should tly and promptly notify the 105

Law Practice or the Third Law Practice, it is assumed that the Client intends to continue with the Current Law Practice and the Exiting Solicitor Practice or otherwise undermine the existing solicitor-client relationship between the Current Law Practice and the Client in any way. The Client remains the client of the Current Law Practice and the Current Law Practice must continue to represent the Client in accordance with the required professional standards. 11. In all matters concerning the procedure in paragraph 8 to 10 above, it is preferable, whenever possible, that the Current Law Practice and the Exiting Solicitor should communicate with each other and with the Client (whether orally.

Guidance Notes 2013 gn 2013 PARAgRAPh 11 ARRAngeMentS foR PRACtiCe tRAining ContRACtS / ReLevAnt LegAL tRAining

entered into with a law practice, that law practice is likely to have committed resources for purposes of the practice training or relevant legal training for that trainee and it may have turned down other applicants for practice training or relevant legal training.

1. This Guidance Note takes effect on 14 November 2013. 2. This Guidance Note is in relation to an agreement,

a trainee to enter into an agreement with more than one law practice solely for the purpose of securing options to pick and choose which law practice to .

practice: under a practice training contract (whether or not the practice training contract has been ed with the Singapore Institute of Legal Education or any other body or

7. If a trainee intends to enter into an agreement with a second-mentioned law practice, and the secondmentioned law practice is or should be aware that the trainee has already entered into an agreement mentioned law practice should advise the trainee

3. Based on from some law practices, there have been situations where a trainee does not a particular law practice despite having entered into an agreement with that law practice. There may be various reasons why a trainee may not a particular law practice – e.g. the trainee may wish to the Legal Service, or another law practice, or may decide on a different career altogether.

mentioned law practice and preferably to obtain their consent, before considering whether to offer an agreement to that trainee. 8. This Guidance Note is advisory only and is not binding on the parties to an agreement. 9. The Society does not express a view on the validity of an agreement and this Guidance Note does not affect the legal rights of the parties to an agreement.

4. In the situation where a trainee does not wish to another law practice (“second-mentioned law practice. appropriate conduct by the parties to an agreement in the situation where a trainee, having entered into an agreement with a law practice, intends to enter into another agreement with another law practice. 6. The parties to an agreement should be aware of the following: practice but subsequently does not wish to that law practice, it is only common courtesy to inform the law practice as soon as practicable that he/she will not be ing the law practice.

106

Annexes

Annex A – Practice Directions and Rulings Which have been Repealed Annex B Annex C – Guidance Notes Which have been Repealed Annex D 107

Annex A : Practice Directions and Rulings Which Have Been Repealed no.

Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 1, paragraph 1: Applications for Ad hoc issions – Queen’s Counsel

1

The Legal Profession Act requires that notice of application for ad hoc ission under section 20 be served on the Society. Only 2 days’ notice is required by the Act, but of the Bar are requested, where possible, to give at least 10 days’ notice of such an application as each application has to be considered by Council before the approval or otherwise of the Society is given.

PDR 1989, Chapter 1, paragraph 2: ission of Queen’s Counsel 2

particulars of the case in which the applicants intend to appear. The attention of of the Society is drawn to the provisions of S. 20 of the Legal Profession Act. While the particulars should

Letter dated 6th October 1987 from the Senior Assistant Registrar, Supreme Court, for your attention:–

3

Queen’s Counsel is engaged. Thank you. Yours faithfully SENIOR ASSISTANT REGISTRAR SUPREME COURT, SINGAPORE ”

PDR 1989, Chapter 1, paragraph 8(c): Change of Solicitors and outstanding Costs a Solicitor in regard to his fees in a situation where he is discharged by a client who then appoints 4 just cause, the Solicitors are entitled to hold the papers until their bill of costs has been paid. If this measure should prove in-effective, there is nothing to prevent a Solicitor from resorting to recovery proceedings in the courts in respect of his outstanding costs. The client can always make payment under protest and request a taxation of the Solicitor’s costs.

108


Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 1, paragraph 10: Service of Court Documents

of the Bar are informed of a new procedure for service of court documents in the United States. 5

As from to-day, requests for service of court documents upon any party in the United States must be accompanied by a bank draft for US$15/- drawn in favour for the United States Treasury on a bank in the United States. This is the standard fee for the service and is chargeable whether the proceedings in Singapore are initiated in the High Court or the Subordinate Courts.

are informed that the Ministry of Foreign Affairs has informed the Registrar, Supreme

PDR 1989, Chapter 1, paragraph 19(a): Liens in Criminal Proceedings The Secretary reported on the receipt of the reply of the Secretary of the Law Society on liens over papers in criminal cases. The Secretary of the Law Society wrote to say as follows:–

6

“The position is that when the solicitor discharges himself, then the client or his new solicitor, can apply to the Court for an Order for delivery of the papers in the cause on an undertaking to hold them without prejudice to the former solicitor’s lien subject to redelivery after the hearing. Where, on the other hand, the client discharges the solicitor, the solicitor is under no obligation to delivery, produce discharged solicitor ought to be able to make use of the non-production of the papers in order to get at criminal and civil cases.” 1 The Secretary of the Law Society also referred to the Judgment of the Court of Appeal in the case proceedings did not override a solicitor’s lien where he otherwise had one.” 1. See, however, Sumpters v. Caldwell.

PDR 1989, Chapter 1, paragraph 19(c): Solicitor

Papers to be handed over on Change of

18:7 Documents in existence before the retainer held by the solicitor as agent for and on behalf of his client or a third party must be dealt with in accordance with the instructions of the client of third purpose of the business transacted during that retainer must be dealt with as follows: 7 Cases, instructions and briefs, drafts and copies and copies made by the solicitor of letters received by to be a distinction between copies of letters written to the client which may be retained by the solicitor and copies of letters written to third parties.

109


Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 1, paragraph 28: Communication by Counsel with Witnesses Subpoenaed by the Prosecution The Bar Committee has from time to time made representations to the Attorney-General’s Chambers regarding the above matter, and attached herewith are copies of correspondence to which the attention of of the Bar is invited. The Committee wishes to draw the particular attention of of the Bar to the views expressed in the February 1963 issue of the English Law Society’s Gazette “INTERVIEWING WITNESSES FOR THE OTHER SIDE – A Solicitor’s Rights and Duties” and lays special stress that, while of the Bar defending accused persons are entitled to interview witnesses called by the prosecution, they should not tamper with any such witness.

8

that solicitors for the defendant in a criminal case are entitled to interview the prosecution’s witness which include the complainant. However, following an old practice the Bar Committee has refrained from advising of the Bar to exercise their rights on the understanding that the prosecution will always call witnesses who have been included in the prosecution’s list so that the defendants will not be deprived of any evidence which could be available from such witnesses. listed witnesses without any prior warning to the defence and thereby depriving the defence of being able to take a statement from such witnesses and to consider whether they should be called to give evidence. The Bar Committee has previously protested to you against this practice which has crept in on the part of the prosecution, but such protest has been in vain. advise of the Bar to refrain from exercising their rights under the rule mentioned in the Law by the Rt. Honourable Lord Parker, the present Lord Chief Justice of England. The Bar Committee regrets having to put an end to the arrangement but it has been not of its own choosing. I am, therefore, directed to inform you that the Bar Committee is taking steps to inform all of the Bar that they are entitled to interview any witness listed by the prosecution including the complainant subject to the safeguards mentioned by the Law Society.

PDR 1989, Chapter 1, paragraph 32: References on other firm’s Solicitors The attention of The Society has been drawn to a letter which has been addressed to Advocates &

9

Solicitors, to whom it is addressed, is earnestly sought in an effort to compile additional information

receiving any such request from Martindale-Hubbell, Inc. should therefore inform them that it would not be proper for them to supply the information sought.

110


Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 1, paragraph 38: Matrimonial Proceedings: Service on the Attorneygeneral

10 decree nisi and the decree absolute shall be served on the Attorney-General by the person or his been served on the Attorney-General. of the Bar should ensure that this is done.

PDR 1989, Chapter 1, paragraph 45: Application for Particulars of ownership of Motor vehicles from Registrar of vehicles 11

are informed that after representations were made by the Law Society, the Registrar of Vehicles has agreed that applications for particulars of ownership of vehicles by solicitors will not be

Letter dated 5th February 1985 from the Deputy Registrar, Subordinate Courts, for the attention of the of the Bar:– “It has been too frequent that accused persons and witnesses, on the day of trial, tender through a

to the exact medical state of the accused person or witness. The answers are usually unsatisfactory. If 1. present. 12

2. Please be informed that the Courts have arranged with the Ministry of Health that patients seeking leave from Court attendance must indicate such facts to the doctor or dentist and that all medical

therefore have to request for a separate signed document from the private doctors.” Sd. DEPUTY REGISTRAR SUBORDINATE COURTS Sd. DEPUTY REGISTRAR SUBORDINATE COURTS

111


Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 1, paragraph 47: Application for notes of evidence in Part-heard Cases The Senior District Judge, after representations made by the Law Society has decided that the decision

13

1. 2. 3.

Brief Not involving complicated facts The evidence involved that of formal witnesses only without extensive cross examination.

PDR 1989, Chapter 1, paragraph 48: Syariah Court hearings 14

who appear in the Syariah Court should give Non-Malay Lawyers who appear for other parties, a copy of their written submissions given to the President of the Syariah Court. If the submissions are oral submissions, are requested to conclude with a summary in English for

PDR 1989, Chapter 1, paragraph 50: Claims by third Party vehicle owners handled by Solicitors 15

of the Bar are encouraged, wherever possible, to enter into discussions with Insurance Companies before a Writ of Summons is issued in all cases where consider it appropriate to do so.

PDR 1989, Chapter 1, paragraph 56: Request for further arguments before Judge/ Registrar 16

It has been brought to the notice of the Council that solicitors are still writing letters of request for further arguments before a Judge/Registrar without extending a copy of the same to solicitors for the opposing party despite Practice Direction No. 1 of 1987 issued by the Registrar of the Supreme Court. are reminded that such practice is improper.

PDR 1989, Chapter 1, paragraph 57: Counsel’s fees 17

Unless otherwise agreed between the solicitors, an instructing solicitor is responsible for Counsel’s fees.

112


Practice Direction, Ruling or guidance note Recommended to be Repealed RuL/2/1989: interest earned on Stakeholder Money whether the solicitor could retain the interest earned on it.

18

Ruling: The question as to who should be entitled to the interest on moneys held by a solicitor as stakeholder was entirely a matter of contract. If the contract is silent, then the solicitor can retain interest for his (See Potters v Loppert

PDR 1989, Chapter 6, paragraph 2: Singapore telephone Directory The Council has recently resolved that in keeping with the practice in other Commonwealth countries there is now no objection to of the Bar including in the general pages of the Singapore Telephone Directory the description “Advocate and Solicitor” or “Advocates and Solicitors” as the 19 bold type. Such bold type entries and the use of the description “Advocate and Solicitor” or “Advocates residential telephone number to be printed in bold type or to contain any reference to his occupation.

PDR 1989, Chapter 6, paragraph 3: use of the name of the Law firm following the name of a Lawyer in Professional Publications, Conference Papers, Conferences or Seminars

conference papers, conferences or seminars. 20

By way of example – A, Partner If A is a legal assistant, then the following description is permissible: Mr A, Advocate & Solicitor The use of the term “Senior Partner” or other like descriptions should be avoided.

PDR 1989, Chapter 6, paragraph 4: ments in “Patent and trade Marks Review” 21

The Council agreed with the Committee’s recommendation that solicitors be informed that their request to insert the particulars of solicitors who undertake patent and trademarks work in the “Patent and Trade Marks Review” was approved and that the Council had also agreed to the inclusion of the words “Advocate and Solicitor” in the ment for the Review.

113


Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 6, paragraph 5: trade Marks & Patent Agents trade Marks & Patent Agents

22 Agents”. This ruling shall apply irrespective of whether the lawyers are of the London Institute of Trade Marks Agent.

23

of the Bar are requested to note that a distinction should be drawn between publishing articles in a legal publication and in a non-legal publication like the press. The Council has accepted the Recommendation of the Etiquette & Rules Sub-Committee that in the case of legal publications Solicitor of the Supreme Court of Singapore. In the case of non-legal publications, particularly the address should not be included in the article.

PDR 1989, Chapter 6, paragraph 7: Photographs to the Press

24

In view of the apparently growing practice among of the Bar to by means of the publication of photographs of themselves in connection with letter press describing their professional Law Society in England and consider that a new rule is desirable and suggest:– “That of the Bar should not supply or arrange or permit the supply of photographs of themselves to the press or other publications when such photographs are to be used in conjunction with letter press referring to the member as a member of the Bar.”

PDR 1989, Chapter 6, paragraph 8: Advertising – Press interviews 25

The Council has recently ruled that where a solicitor is interviewed on television, with the press and/ any biodata as to his experience and practice.

114


Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 6, paragraph 14: general Rules on Advertising It is contrary to the etiquette of the profession for a Solicitor:–

Provided that this rule shall not apply to the printing of the name and address of any Solicitor or of

26

publications as the Bar Committee may from time to time sanction, or in any telephone directory or in ordinary legal notices published in the press or elsewhere so long as undue prominence is not given therein to the printing of such name and address either by the use of large print or enlarge space and

laudatory references to him in his professional capacity or containing expressions of gratitude for

carrying on of his practice or otherwise any act or thing which can reasonably be regarded as touting or advertising or as calculated to attract business unfairly.

PDR 1989, Chapter 6, paragraph 16: Chamber of Commerce 27 Chambers of Commerce and of any similar Association such as the British Business Association.

PDR 1989, Chapter 6, paragraph 17: Legal notes in the Law

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The Council has ruled that there are no objections to a Solicitor publishing his notes or any aspect of the Law with a view to sale. However, the publishers’ name should have no obvious relationship with the Solicitor’s professional practice or his person, as such relationship, however unintentional, would be suggestive of advertising. appear at the end of an original contribution, but no name should appear at the end of an item which is merely a report or summary.

29

PDR 1989, Chapter 6, paragraph 18: Participation by Solicitors Acting for Banks in Seminars The Council is of the view that there is nothing objectionable in the Banks’ Solicitors participating in

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 6, paragraph 19: Brochures

30

The Council has received an enquiry from a member as to whether it would be appropriate for developers to insert in their brochure for a Development Project, the name of their solicitors. The Council has ruled that it would not be appropriate to allow the solicitors name to be inserted in the brochure.

PDR 1989, Chapter 6, paragraph 21: free Legal Advice

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It has come to the notice of the Council that solicitors giving free legal advice through Legal Aid clinics to of the public sometimes end up acting for parties in respect of matters on which free legal advice were sought. are warned that the Law Society views such practice as touting. who are on the giving free legal advice in any legal aid clinics or institutions and who are found acting on behalf of any parties relating to matters on which free legal advice was sought will be subject to Disciplinary Proceedings.

PDR 1989, Chapter 6, paragraph 22: Calling Cards – Clerks 32

number as such a practice, if permitted, may facilitate touting for work.

PDR 1989, Chapter 6, paragraph 23: newsletter on Recent Legal Developments

should appear anywhere in the Bulletin. Furthermore, there is no certainty that the readership would not extend beyond the recipient clients.

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If a newsletter is intended purely for internal circulation, then there is clearly nothing objectionable. However, if this is indeed the purpose, then there should be no need for the prominent display of the

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 7, paragraph 2: unprofessional Conduct It is unprofessional and improper conduct:

or agents practising in the British Empire, but such a commission should not be allowed to any other Barrister, Solicitor or Attorney in the British Empire. The recognised agent of a Solicitor is a Barrister, Solicitor or Attorney who regularly does work as Agent for the Solicitor whether the 34

Solicitor or Attorney practising in a foreign country. for an Advocate and Solicitor to pay, give, agree to pay, or agree to give any commission, gratuity, pretext of services rendered or otherwise. Provided that this Rule is not intended to prohibit the payment of ordinary bonuses to staffs. No Advocate and Solicitor shall accept or agree to accept less than the scale fee laid down by law in respect of non-contentious business carried out by him.

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 7, paragraph 3(a): s Every Solicitor shall keep such books and s as may be necessary to show and distinguish in connection with his practice as a Solicitor and

Every Solicitor, who holds or receives money on of a client (save money hereinafter expressly current or deposit at a Bank which is to be kept in the name of the Solicitor (hereinafter

No money shall be paid into a client other than:

in part money due to the Solicitor. 35

No money shall be drawn from a client other than: debt due to the Solicitor from a client or money drawn on the client’s authority, or money in respect of which there is a liability of the client to the Solicitor, provided that the money so drawn shall not in

Rules 13, 14 and 15 shall not apply to money which:

In order to ascertain whether the Rules under this Part have been complied with, the Bar Committee, acting on written complaint lodged with it, may require any Solicitor to produce at some convenient time and place, his books of , bank books, statements of s, vouchers and any other necessary documents for the inspection of any person appointed by the Committee, and such person shall prepare for the information of the Committee a report on the result of such inspection. Before making any such appointment the Committee shall consider any objection made by any such 118


Practice Direction, Ruling or guidance note Recommended to be Repealed In order to ascertain whether the Rules under this Part have been complied with, the Bar Committee, acting on written complaint lodged with it, may require any Solicitor to produce at some convenient time and place, his books of , bank books, statements of s, vouchers and any other necessary documents for the inspection of any person appointed by the Committee, and such person shall prepare for the information of the Committee a report on the result of such inspection. Before making any such appointment the Committee shall consider any objection made by any such Solicitor to the appointment of a particular person on personal or other proper grounds.

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Before instituting an inspection on a complaint made by a third person, the Committee shall require prima facie evidence that a ground of complaint exists, and may require the payment by inspection and the costs of the Solicitors against whom the complaint is made. The Committee Nothing in the Rules under this Part shall deprive a Solicitor of any recourse or right, whether by way of lien, set-off, counter-claim charges or otherwise, against moneys standing to the credit of a client .

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 7, paragraph 6(a): Stamp on notarial Public With reference to a letter dated 2nd December, 1967, regarding the necessity of stamping every

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protests were usually stamped, there was some divergence of opinion on whether or not notarial acts should be stamped, but the consensus was that these acts ought to be stamped. After discussion, the meeting decided that every notarial act should be stamped and that of the Bar should be informed accordingly.

PDR 1989, Chapter 7, paragraph 7(a): Appointment of notaries Public 37

The Council has been informed by the Attorney-General that in future any application for appointment as a Notary Public should be accompanied by evidence of the necessity for a further appointment in the area in which the applicant practises.

PDR 1989, Chapter 7, paragraph 7(b): Appointment of notaries Public

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of the Bar are informed that the Council has agreed to the request of the Attorney-General that applicants for the appointment of Notaries Public should channel their applications through the Law Society for onward transmission to the Attorney-General who is the appointing authority under the Notaries Public Act On behalf of the applicants, the submission of all applications will be made by the Council to the

PDR 1989, Chapter 7, paragraph 10: Registration of trade Marks in Sarawak

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The State Attorney-General, Sarawak, has requested that for the purpose of the registration of trade marks in Sarawak, Advocates and Solicitors in Singapore wishing to act in Sarawak should act through practising Advocates in Sarawak and in such cases the address for service should be shown as will be greatly appreciated.

PDR 1989, Chapter 7, paragraph 13: Wearing of Wigs Enquiries have been received by the Singapore Bar Committee as to whether the wearing of wigs in

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a resolution of the general of the Bar made in 1934, it was resolved that Advocates and Solicitors appearing in the High Court should wear wigs whenever possible. Although for some time after the ing of the resolution, some Advocates and Solicitors did take the trouble to wear wigs, it was never a popular practice. If, however, any member of the Bar wishes to wear a wig when appearing in the High Court, he or she is entitled to do so.

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 7, paragraph 14(a): Change of Address

convenience of is often rendered out of date in many instances. We would urge any member of the Bar affected by such changes to notify us of the fact so that circulars and other matters may be directed to their new address, in the future. 41

PDR 1989, Chapter 7, paragraph 14(b): Change of Address, etc.

are reminded that they should notify the Law Society if there is a change of partnership, employment, address of their practice, telephone numbers and such other relevant particulars either before or immediately after the change takes place.

PDR 1989, Chapter 7, paragraph 16: Disclosure of information to Auditors The attention of of the Bar is drawn to the recommendations of the Law Society of England in regard to the furnishing of information by solicitors to auditors. This matter is being taken up by the Law Society with the Singapore Society of ants, but in the meantime of the Bar may feel disposed to follow the recommendations of the England Law Society, a copy of which is attached, until such time as agreement can be reached with the Society of ants on some alternative formula. 42

The attention of of the Bar is drawn to paragraph 1 of the Society’s circular dated the 10th April 1972. Since then the Singapore Society of ants has agreed with the Law Society of Singapore to accept the recommendations of the England Law Society a copy of which accompanied the Society’s circular of the 10th April, 1972. The Society of ants adds that it believes that there may be circumstances in which it is legitimately necessary as an audit procedure for an enquiry by the directors is complete in all material particulars. of the Bar are, therefore, advised in enquiries.

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 7, paragraph 22: visiting Silks - tax Liability The following arrangement has been agreed with the Commissioner of Inland Revenue and is drawn to the attention of all of the Bar, in our Courts can be dealt with by the Commissioner of Inland Revenue expeditiously. of Inland Revenue immediately after they have obtained the Courts’ Order itting the Queen’s Counsel in any case of matter. It would be convenient if a copy of the Order of Court in question is sent to the Commissioner of Inland Revenue.

that no fees will be paid to the Queen’s Counsel in question until his Singapore tax liability is settled

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event the Commissioner of Inland Revenue will not exercise the power in him reserved under Section 57 of the Income Tax Act to appoint the solicitor an agent of the Queen’s Counsel. However, the Commissioner of Inland Revenue reserve to himself the power to make an agency appointment under Section 57 where the facts known to him merit it and especially where notice is given that Queen’s Counsel has been briefed or he otherwise know about this fact but an undertaking from the instructing solicitor has not been given.

is instructed. Air fares and hotel expenses of Queen’s Counsel, even though they may form part of the fee arrangement, may be excluded if these are actual reimbursements for the particular items. Fees for opinions or further opinions rendered from outside Singapore even if they relate to the case in which the Queen’s Counsel is subsequently instructed and even if given after receiving such instructions is not liable to Singapore tax. If any opinion is rendered whilst he is in Singapore whether to his instructing solicitor or anyone else any fees payable in respect thereof attract Singapore tax. when the same is paid or remitted to the Queen’s Counsel. In the event that the solicitor is funded by his client but holds the same pending receipt of a fee note from Counsel, he would have to pay to the Commissioner of Inland Revenue the tax liability as soon as an amount can be estimated for the services which have been rendered. should accompany the remittance to the Commissioner giving necessary details of the case involved and the Queen’s Counsel briefed. If any expenses are claimed as a deduction against income a normal Return must be rendered by or on behalf of the Queen’s Counsel.

PDR 1989, Chapter 7, paragraph 31: Mentioning Cases 44

are informed that the practice for DPPs to mention cases is according to their seniority and for this purpose the date they ed the Legal Service is equated with the date of ission to the Bar of Counsel in practice.

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Practice Direction, Ruling or guidance note Recommended to be Repealed PDR 1989, Chapter 7, paragraph 33: firms’ names

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The Council of the Law Society had recently to consider an application by some of the Bar who wanted to practise under the name and style of ABC & Co / ABC Partners (A, B and C ruled that of the Bar should practice under their own names/surnames or the names/surnames lend credence to anonymity and lead to confusion.

RuL/2/1996 - Legal Costs for the Preparation of a Statutory Declaration from a vendor of a Property 1. The Council of the Law Society is of the view that solicitors should be entitled to charge a fee 46 2. The Council is of the view that solicitors should be entitled to charge a fee of $50 for the additional work involved in preparing the Statutory Declaration. No additional fee is to be charged by the solicitors perusing the form of Statutory Declaration.

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Annex B : Practice Directions and Rulings no. Practice Directions Recommended 1

PDR 1989, Chapter 1 paragraph 4: ’ attention is drawn to section 32(3) of the Applications for Pupils to Appear before Act where a solicitor who is a supervising solicitor under Part II of the Act may apply to allow a practice a Judge or Registrar trainee (who has completed not less than 4 months of the practice training period) to appear, on behalf of to the application made by Masters for their the solicitor or the Singapore law practice in which the solicitor practises, before — pupils to be given leave to appear before:–

Magistrate, the Registrar of the Subordinate Courts or a Deputy Registrar of a case and/or to apply for bail under section

or to apply for bail.

Former Chief Justice, Wee Chong Jin, has commented that it is a discourtesy for petitioners who apply for their pupils (now known as practice trainees appear in chambers not to attend on their applications, or if they are unable to attend for good reasons that a colleague should attend. does attend. There have been instances where pupils itted to appear in chambers have Would of the Bar please note that whenever appeared on these applications. possible the supervising solicitor of a practice trainee Would of the Bar please note that should appear on these applications and if he is not whenever possible the Master of a pupil should able, then a senior colleague should attend. appear on these applications and if he is not able, then a senior colleague should attend. The Chief Justice has commented that it is a discourtesy for petitioners who apply for their pupils to appear in chambers not to attend on their applications, or if they are unable to attend

For the guidance of of the Bar, please note that in a recent application under section The Honourable The Chief Justice has ruled that before an Order under this section can be made, a pupil should have served at least six months pupilage if he has not completed his Post-Graduate Practical Course.

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PDR 1989, Chapter 1 paragraph 5: out of hours Arrest of vessels/Cargo in short notice of a vessel’s arrival was received from iralty encountered when arrest documents were presented

when short notice of a vessel’s arrival was received from clients with instructions to arrest,

available opportunity, the purported reason for documents were presented to the Registry after refusal being section 53 (now section 52(1) Stamp Duties Act (Cap. 312, 2006 Rev. Ed. Sing. which provides as follows:– opportunity, the purported reason for refusal “No instrument chargeable with duty shall be being section 53 of the Stamp Duties Act which itted in evidence for any purpose by any person having by law or consent of parties authority to provides as follows:– receive evidence, or shall be acted upon ed “No instrument chargeable with duty shall be or authenticated by any such person or by any public itted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted As a result of this representation, the Council made upon ed or authenticated by any such representations to the Registrar as well as the AttorneyGeneral, with a view to either establishing a practice whereby an undertaking from a solicitor would be instrument is duly stamped.” As a result of this representation, the Council amending the then section 53 appropriately. made representations to the Registrar as well as the Attorney-General, with a view to either The Attorney-General has written to say that in his establishing a practice whereby an undertaking view the then section 53 has no application in the mentioned situation. This is because arrest documents circumstances or alternatively, amending are not in fact chargeable with stamp duty, but with Court fees as prescribed by the Rules of Court (Cap section 53 appropriately. 322, R 5, 2006 Rev. Ed. Sing) (“Rules of Court”) at The Attorney-General has now written to say paragraph 76(a) and 76(b) of Appendix B. that in his view section 53 has no application in the mentioned situation. This is because This view was conveyed to the Registrar, and in arrest documents are not in fact chargeable with consequence, the Registrar has now written to say stamp duty, but with Court fees as prescribed that he will in future agree to accept an undertaking by the Rules of the Supreme Court 1970. on unstamped documents, provided that these This view was conveyed to the Registrar, and documents are stamped as soon as possible the in consequence, the Registrar has now written following morning. to say that he will in future agree to accept an him to act on unstamped documents, provided that these documents are stamped as soon as possible the following morning.

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PDR 1989, Chapter 1 paragraph 6: Where a solicitor intends to rely on authorities at a hearing, he shall supply a copy of the authorities to exchange of Authorities his opponent before the hearing.

The attention of the Society has been drawn to the practice in England whereby Barristers’ Unless there is a prior agreement between solicitors clerks exchange each other’s lists of authorities on a time at which authorities are to be exchanged, to be cited at the hearing before the lists are hearing, the solicitor is to supply a copy of the This produced to the Court. is to ensure that: While this is not done in Singapore, it is felt that the English practice has much to commend. Not only is one’s opponent not taken by the istration of justice because the Judge justice is not compromised hears proper argument on all the cases cited. fairness in court proceedings is promoted. of the Bar are, therefore, encouraged to follow the English practice and to supply a [Afternote: Refer to: copy of the list of authorities which they send to the Court Librarian, to their opponents, a) Part VIII, paragraph 69 of the Supreme Court’s specifying in that list not only the volume in Practice Directions: Filing of documents and which the report appears, but the page and authorities for use in Court; name of the case. b) Part VII, paragraph 50(9)-(11) of the Subordinate Courts’ Practice Directions: Bundle of authorities; and c) Part XVI, paragraph 154 of the Subordinate Courts’ Practice Directions: Bundles of authorities for criminal proceedings.) d)2011 Guide P72 Paragraph 6] 4

PDR 1989, Chapter 1 paragraph Protracted Arguments in Chambers 7: Appearance in Chambers: the “10-Minute Rule” Solicitors appearing in Chambers who anticipate that It has been brought to the Council’s notice that recently there have been many instances of solicitors not adhering to the “10-minute rule” when they appear before the Judge or the Registrar in Chambers in the High Court. appearing in Chambers are reminded to observe this rule as an act of courtesy to the others who are awaiting their turn and they should ask for their case to be stood down if they think that their case would extend beyond 10 minutes.

their arguments would be substantial are reminded to inform the Court accordingly at the commencement of the hearing and/or to ask for their case to be stood down. where possible, give priority to other solicitors Solicitors are reminded to observe the above as an act of courtesy to other solicitors who may be waiting for their turn. [Afternote: Refer to 2011 Guide P73 Paragraph 8]

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PDR 1989, Chapter 1 paragraph 8(a): obtaining fee Agreements in Writing Discharge from Proceedings Solicitors are advised that it is important 1. The Council has recently had to consider a case to have the agreement on the fees where a complainant who was the accused in a Police reduced into writing. They should also Court prosecution alleged that his Counsel had obtained take steps to explain to their clients the a discharge from the proceedings without reasonable or consequences of their failure to pay in whether the advocate and solicitor had contracted to do the agreed fees, and the right of the Counsel to apply to the Court for leave provided his fees at a certain sum per day were paid daily to withdraw from the proceedings if the agreement for his fees or expenses to be and in advance. paid is breached by the client. 2. In order that awkward situations such as that abovementioned should not occur, of the Bar are [Afternote: Refer to 2011 Guide P130 advised that it is important when undertaking the defence Paragraph 1. ] of an accused to have the agreement on the fees reduced to writing. Although in England it has been held that a Counsel who has agreed with his professional client to fee daily is not under an obligation to continue appearing if the of the agreement are not kept by the client, it must be ed that a Counsel’s client in England is a solicitor who is well acquainted with the practice relating to the payment of fees and disputes between solicitors and Counsel hardly ever arise. 3. The situation is somewhat different in Singapore. As the two branches of the profession are fused, a Counsel’s client in such cases is usually the accused person himself, who is not well acquainted with the rights and obligations of a party to such an agreement. of the Bar are, therefore, advised that they should not only enter into a written agreement with their clients in such cases, but also take steps to explain to their clients the consequences of their failure to pay the agreed fees, and the right of the Counsel to apply to the Court for leave to withdraw from the proceedings if the contract for his fees to be paid on a daily basis is not kept by the client. 4. Further, in the event that an application is made to be discharged from acting in such circumstances, the Judge or Magistrate should be told the true reason for the application, and not that the advocate has “no further instructions”. 5. After consultation with the Chief Justice, the Council has decided that the Counsel should not now ask to see the Judge or Magistrate in Chambers to explain the position.

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PDR 1989, Chapter 1 paragraph 8(b): Reservation of Rights in Warrant to Act Discharging from Acting further Applications by solicitors to Court to discharge them from further acting in litiqious [sic] matters on the ground that their clients are not paying their fees are frequently made these days. Some of these applications may well be improper, as they may amount to an attempt by the Applicants to seek an Order from the Court to condone their breach of contract. Whether a solicitor is entitled to terminate or seek a termination of his retainer by reason of pecuniary embarrassment to him, depends on the of his retainer.

Any seeking to terminate his retainer may well be averted by inserting an appropriate reservation of right in his client’s Warrant to Act. This reservation could be to the effect that the solicitor may at any time discharge himself based on the grounds set out in rule 42(1) of the PCR, while observing the obligation in rule 42(2) of the PCR to take reasonable care to avoid foreseeable harm to the client. Without a suitable reservation of right, a solicitor who obtains his discharge may well expose himself to a claim for damages in the event his withdrawal leads to the dismissal of his client’s claim or the recovery of Judgment against his client when there is a valid defence.

may well be averted by inserting an appropriate reservation of right in his client’s warrant to act. [Afternote: Refer to 2011 Guide P12 Paragraph 2] This reservation could be to the effect that the solicitor may at any time discharge itself without and given reason and that upon discharge he shall have a lien over all documents and moneys held on behalf of the client until payment of his professional costs. Without a suitable reservation of right, a solicitor who obtains his discharge may well expose himself to a claim for damages in the event his withdrawal leads to the dismissal of his client’s claim or the recovery of Judgment against his client when there is a valid defence. 7

PDR 1989, Chapter 1 paragraph 11: Service of Subpoenas on Witnesses Subpoenas to Attend Court: experts and

The Council has received an increasing number of complaints from witnesses (especially

Solicitors should not give short notices to witnesses to attend Court. In several cases, instant subpoenas have been served a day or two before the date of hearing, thus giving the witnesses concerned little time to make necessary arrangements. Such practice is deprecated and solicitors are reminded that it is essential in the interests of the good name and reputation of the profession that solicitors should show courtesy, consideration and fairness to witnesses and they should take positive steps to

court and that in several cases, instanta [sic] subpoenas have been served a day or two before the date of hearing, thus giving the witnesses concerned little time to make necessary arrangements. The Council deprecates such of the date of hearing. practice and are reminded that it is essential in the interests of the good name and reputation of the profession that solicitors should show courtesy, consideration and fairness to witnesses and they should take positive steps to ensure that witnesses are given

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The attention of the of the Bar is drawn to the question of subpoenaeing [sic] The attention of the of the Bar is drawn to or because they have in their records material either as experts or because they have in their records which may be relevant to the case in regard to material which may be relevant to the case in regard which they have been so subpoenaed. to which they have been so subpoenaed. In order to establish mutual co-operation and In order to establish mutual co-operation and understanding between of the Bar understanding between solicitors and Government are advised that before issuing a subpoena, subpoena, they should communicate with the Head they should communicate with the Head of the instance, indicate the nature of the evidence required, instance, indicate the nature of the evidence and come to an amicable arrangement with him so required, and come to an amicable arrangement that a subpoena may be issued for the attendance of with him so that a subpoena may be issued for the evidence required. of or is able to give the evidence required. If solicitors adhere to this procedure, it will help to It is felt that if of the Bar adhere promote better understanding between Government to this procedure, it will help to promote better understanding between Government ensuring the smooth running of the istration of justice. thereby ensuring the smooth running of the istration of justice. [Afternote: Refer to: The above circular was issued in September 1965 and is re-published by way of reminder and because the attention of the Council was recently drawn to an instance where a medical practitioner was given less than one day’s notice to attend Court as a witness, causing a serious disruption of important appointments. All witnesses who have daily business commitments should, as a matter of courtesy as subpoena. well as good practice, be given as much notice as possible and care should be taken that their Also refer to 2011 Guide P101 Paragraphs 1 and 2] time spent in and about the Court is kept to a minimum.

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PDR 1989, Chapter 1 paragraph 12(b): Responsibility for fees Witnesses’ fee and expenses- Cost of Professional Agents a) Witnesses’ fee and expenses For the preservation of good relations with of other professions, Council considers that where a solicitor engages the services of a professional witness, he should assume personal liability for the payment of the proper fees of that witness, unless at the time the services are requested he makes it clear to the witness concerned that he will not be personally responsible for payment of the fees involved and that the witness must look to the lay client for payment. The Council applies the same principle to the expenses of a witness who is not a member of another profession. Therefore, a solicitor is taken to be professionally responsible for payment of the reasonable fees and expenses of any such witness whom he may call to give means that, before calling upon the witness, the solicitor should for his own protection either satisfy himself that his client is willing and able to pay the witness’s expenses or, it he has no such assurance, should obtain payment from cover the expenses. A solicitor who engages a foreign colleague to advise on a case or to cooperate in handling it, is responsible for the payment of the latter’s charges unless there is an express agreement to the contrary. When a solicitor directs a client to a foreign colleague he is not responsible for the payment of the latter’s charges, but neither is he entitled to a share of the fee of this foreign colleague.

Where a solicitor calls a witness to give evidence on behalf of his client, he shall, before calling upon the witness, make it clear to the witness concerned that he will not be personally responsible for payment of the fees involved (in the case of a professional witness) or any such fees and expenses (in the case of other witnesses). The solicitor should for his own protection either satisfy himself that his client is willing and able to pay the witness’s expenses or, if he has no such assurance, obtain payment from his expenses. Where a solicitor directs a client to a foreign colleague, he is not responsible for the payment of the latter’s charges, but neither is he entitled to a share of the fee of the foreign colleague.

Amendment to rule 52 PCR in 2001 [“Understanding the Recent Amendments to the Professional Conduct and Publicity Rules”, Singapore Law Gazette, December 2001] “Rule 52 sets out the professional duty of a solicitor to meet the fees of professional agents when there is no agreement with the agent that he look to the client of the solicitor for payment of his fees. The Ethics Committee agreed with the view of the Council that the Law Society should not continue to hold its professionally liable for the fees of professional agents they engage on their clients’ behalf when there is no reciprocal professional obligation imposed by other professional bodies.

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(PDR 1989, Chapter 1 paragraph 40: Responsibility for Payment of Charges of foreign Solicitors instructed by Singapore Legal firms The Council’s attention has been drawn recently as to the responsibility for payment of charges of foreign solicitors instructed by Singapore The Council would draw the attention of solicitors to the general rule that where a lawyer engages a foreign colleague he is responsible for the payment of the latter’s charges unless there is express agreement to the contrary. This rule should always be followed in all cases where there is reciprocity as for example and Singapore and Australia.

The amended rule only requires a solicitor to be professionally responsible (unless agreed otherwise) for the fees of a fellow solicitor and a foreign lawyer obligations. [Society’s Note: A solicitor is therefore under no obligation to pay the professional fees of another professional who is not a solicitor. The responsibility to pay the fees falls on the client. Only the Court can order a personal liability of costs against a solicitor and in absence of such order, one cannot assert any personal legal obligation against the solicitor.] Therefore, from 1 September 2001, a solicitor will not be liable for professional misconduct if he or she fails to meet the fees of a professional agent engaged on a client’s behalf. However, nothing in r 52 affects the solicitor’s contractual liability to such agents or third parties. It is always a good rule of practice to inform professional agents that their fees will be met by monies to to pay for the professional agent’s fees.” [Afternote: Refer to

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PDR 1989, Chapter 1, Para. 12(c) are reminded to inform their witnesses not - Witnesses Attendances in the to turn up in Court if the civil cases they are involved in have been settled. There have been numerous Subordinate Courts occasions in the past where witnesses have waited Letter from the Registrar, Subordinate Courts have been settled and the solicitors concerned had for your attention:not informed them that their attendances were not “I would be obliged if you would remind required. your to inform their witnesses not to turn up in Court if the civil cases they are involved in have been settled. There have been numerous occasions whereby witnesses have in question have been settled and the solicitors concerned had not informed them that their attendances were not required. Yours faithfully, Sd. ALFONSO ANG REGISTRAR, SUBORDINATE COURTS.”

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PDR 1989, Chapter 1 paragraph 13(b) Paragraphs 20 and 38 of the Subordinate Courts Request for vacating or adjournment of Practice Directions provides guidelines on what criminal cases in the Subordinate Courts lawyers need to do when requesting to either vacate Letter dated 12th July 1988 from the Registrar, informed that in addition for criminal matters, all such request should be addressed to The Registrar, Subordinate Courts, for your attention:Subordinate Courts. The Subordinate Courts will “I am directed by the Senior District Judge also appreciate if lawyers could indicate the case to inform you that with immediate effect all reference and court number for easy reference as it letters from solicitors regarding the above must will assist the Subordinate Courts in directing the be copied to the OC Prosecution Subordinate request to the appropriate court. Courts: The OC Prosecution has been similarly directed. Sd. Alfonso Ang Subordinate Courts Singapore”

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PDR 1989, Chapter 1 paragraph 14: A) no taking over Brief until Retainer Change of Solicitors Determined 18:1 Where a client decides to transfer his business from one solicitor to another, there is no general obligation, except in pending litigation, for the new solicitor to inform the previous solicitor of the fact.

A solicitor should not act in a matter in place of another solicitor whom he knows has been retained until that retainer has been determined by the client.

[Afternote: Refer to rule 50 of the PCR: Taking over 18:2 A solicitor should not, however, act in a brief and 2011 Guide P61 Paragraph 1] matter in place of another solicitor whom he knows has been retained until that retainer has B) Basis of Second opinion been determined by the client or the consent While a second solicitor may give a second opinion opinion has been given. carefully consider whether he is in possession of 18:3 This rule is designed not merely to facts to give such an opinion. preserve the courtesies and proprieties of the profession but is in the interests of the public [Afternote: Refer to opinion on the basis of facts which were not mentioned by the client to the second solicitor. In those circumstances an opinion averse to that can only be calculated to undermine the client’s 18:4 Where, however, the client does not wish the fact that he has taken other advice revealed who is consulted should decide whether or not he is in a position to give an opinion, since he may not be in possession of all the facts. If correct advice or there is no objection to the course which he is pursuing, he will no doubt say so but if he thinks otherwise, then he should leave it to the client to decide whether to continue with his original solicitor or to transfer his instructions.

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18:5 A solicitor is not, however, precluded from advising another party on the subject matter of a separate or distinct interest. For example, the solicitor acting for them are free to consult a second solicitor with a view to facilitating a total change of solicitors either by agreement or by application to the court. 18:6 Notwithstanding that a will contains a wish that the executors should employ a named any solicitors they choose to instruct. Where executors desire to instruct another solicitor there is no professional objection to the new solicitor acting for them, and he is under no duty as stated above, it is desirable and courteous to do so. (Extract from A Guide to Professional Conduct

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PDR 1989, Chapter 1 paragraph 15(a): Advising a friend who is a Client of another Advice to Clients of Another Solicitor Solicitor There have been several complaints in the past concerning solicitors who give advice to persons whom they know to be the clients of another solicitor and who proffer an explanation that they were only giving friendly advice to persons whom they know well. The Council has reproduced extracts from pages 37 and 38 of the Guide to the Professional Conduct of Solicitors as the principles contained at paragraph 18:2 to 18:4 for the guidance of practising of the Bar.

If a friend of Solicitor A discusses a matter with him and Solicitor A is not acting for any party in the matter or is informed by his friend that the latter is represented by Solicitor B, it would be a gross discourtesy for Solicitor A to comment on the advice tendered by Solicitor B. However, it would not be improper for Solicitor A to suggest to his friend that he might wish to discuss certain aspects of the matter with Solicitor B in order that Solicitor B can advise him on those aspects of the matter. Nevertheless, it would not be proper for Solicitor A to discuss the matter further than that with his friend, as otherwise

In addition, the Council sought the advice of exists between his friend and Solicitor B would the Law Society of England on this matter necessarily be disturbed. generally and the short answers to the four [Afternote: Refer to:

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1. Question: If a friend of a solicitor discusses a matter with him, the solicitor not acting for any party but knows or is informed by his friend that the friend is represented by other solicitors, is it wrong for the solicitor to comment on it or advise his friend in the circumstances? Answer: Whereas it would be a gross discourtesy for the solicitor to comment on the advice tendered by the friend’s proper solicitors it would not be wrong for the solicitor to suggest to the friend that he might wish to discuss certain aspects of the matter with his proper solicitors in order that they can advise him on those particular aspects of the matter. I do not think it would be proper for the solicitor to discuss the matter further than that with the friend and the basis for my view is that to do so would of necessity disturb the relationship of between the friend and his proper solicitors. 2. Question: If it is wrong, what ought the solicitor to say to his friend?

3. Question: Are there any circumstances in which a solicitor may advise a friend who he knows has retained other solicitors? Answer: Please see paragraph 18:4 at page 38 of the Guide. Solicitor A, and approaches Solicitor B, stating the Council set out guidelines of what steps Solicitor B should take so that he can act in the place of Solicitor A? Answer: Please see accompanying copy extracts from the Guide to the Professional Conduct of The attention of of the Bar is directed Society of England

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PDR 1989, Chapter 1 paragraph 15(b): Solicitor on Record Solicitors on Record If in any civil proceeding the name of any Advocate and Solicitor appears on the record for any party no other Advocate and Solicitor shall knowingly agree to act or continue to act for such party in such proceeding unless:Advocate and Solicitor thereto or

If in any civil proceeding the name of any solicitor appears on the record for any party, no other solicitor shall knowingly agree to act or continue to act for such party in such proceeding unless he has, in ignorance that such name so appears on the record, already agreed to act for such party and is unable by reason of circumstances or urgency or the like to refuse to act further to such party without exposing himself to a change of breach of professional duty. [Afternote: Refer to 2011 Guide P61 Paragraph 2]

Solicitor has been paid or on the record, already agreed to act for such party and is unable by reason of circumstances or urgency or the like to refuse to act further for such party without exposing himself to a change of breach of professional duty or unwilling or has refused to act further for such party, in which even he shall, if so required, and Solicitor may have for costs. (Rules Regulating the Practice & Etiquette of 14

PDR 1989, Chapter 1 paragraph 15(c): of the Bar are reminded that the general rule Communication with Clients of other of etiquette about communicating with the clients of other solicitors is that a solicitor should not interview Solicitors or otherwise communicate with the client of another of the Bar are reminded that the general solicitor, particularly in pending proceedings, unless: rule of etiquette about communicating with the clients of other solicitors is that a solicitor should not interview or otherwise communicate with the client of another solicitor, particularly in pending proceedings, without the consent and approval of that solicitor.

severely prejudiced if the communication is delayed. [Afternote: Refer to rule 48 of the PCR: No Communication with represented clients]

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PDR 1989, Chapter 1 paragraph 15(d): While a solicitor may correspond with the opposing party with the express approval of opposing party’s Dealings with the opposing Party

solicitor, he shall not go beyond what is necessary to achieve the purpose of the communication. A solicitor who accompanies his client to serve a notice on the opposing party should not act in a manner blatantly provoking hostility.

of the Bar are informed that in a recent complaint investigated by the Inquiry Committee, it was alleged that a solicitor who had accompanied his client to serve a notice on the opposing party had acted in a manner [Afternote: Refer to 2011 Guide P77 Paragraph 2] “blatantly provoking hostility”. of the Bar are cautioned of the need to avoid as far as possible direct contract with the opposing party even though consent has been obtained from the opposing solicitor as such is likely to lead to acrimony and accusation of improper behaviour. 16

PDR 1989, Chapter 1 paragraph 16: Draft orders of Court Draft orders of Courts – Disagreement If an Order drawn by an Advocate and Solicitor is amended by an Advocate and Solicitor for any other party or parties and the Advocate and Solicitor who drew such Order or any other Advocate and Solicitor concerned is unwilling to accept the draft Order as amended, the party seeking to take out the Order shall within a reasonable time take out an appointment to settle the Order. Any Advocate and Solicitor making any amendment in an Order drawn by another Advocate and Solicitor shall initial such alteration. (Rules Regulating the Practice & Etiquette of

If an Order drawn by a solicitor is amended by the solicitor for any other party or parties and the solicitor who drew such Order or any other solicitor concerned is unwilling to accept the draft Order as amended, the party seeking to take out the Order shall within a reasonable time take out an appointment to settle the Order. [Afternote: Refer to a) Rules Regulating the Practice & Etiquette of the Singapore Bar: Rule 3) b) 2011 Guide P72 Paragraph 5]

Any solicitor making any amendment in an Order drawn by another solicitor shall initial such alteration. [Afternote: Refer to a) Rules Regulating the Practice & Etiquette of the Singapore Bar: Rule 3) b) 2011 Guide P72 Paragraph 5]

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PDR 1989, Chapter 1 paragraph 17: Solicitors’ Correspondence in Sealed Covers Solicitors’ Correspondence It has come to the attention of the Council that some of the Bar are sending letters to other without their letters being enclosed in sealed covers. This practice is unsatisfactory as there is a potential risk of the contents of the letters which in most cases are those to whom the letters are addressed.

Letters and all copies must be enclosed in sealed covers before they are despatched. Sending letters to other solicitors without the letters being enclosed in sealed covers is unsatisfactory as there is a potential risk of the contents of the letters which in most cases those to whom the letters are addressed. [Afternote: Refer to 2011 Guide P23 Paragraph 1]

of the Bar are advised to ensure that letters and all copies are enclosed in sealed covers before they are despatched. 18

PDR 1989, Chapter 1 paragraph 18: Draft Documents Dealing with Draft Documents are reminded of the requirements of common courtesy in dealing with draft documents. A draft should be delivered in duplicate. Amendments should be made on the draft clearly showing the original and the amendment. One established method is to underline the additions and cross out the deletions but there may well be other appropriate methods.

A solicitor shall comply with the requirements of common courtesy in dealing with draft documents as follows:

showing the original and the amendment. One established method is to underline the additions and cross out the deletions but there may well be other appropriate methods. A draft should not be amended A draft should not be amended by delivering by delivering a new document altogether. a new document altogether. Special circumstances may require a departure from the Special circumstances may require a departure from general practice in which case an explanation the general practice, in which case an explanation should be given. Circumvention of these should be given. Circumvention of these requirements amended version to the client for the client to the client for the client to deliver to the other solicitor deliver to the other solicitor or his client. or his client. [Afternote: Refer to: a) Part II, paragraph 13 of the Subordinate Courts’ Practice Directions: Amendment of documents; and Part III, paragraph 35(2)-(5) of the Supreme Court’s Practice Directions: Amendment of any document.) b) 2011 Guide P72 Paragraph 4]

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PDR 1989, Chapter 1 paragraph 19(b): Copies of Documents A solicitor retains documents that come to his possession in the course of his professional services in his capacity as his client’s agent. The property in respect of such documents remains with his client, as otherwise there cannot be a solicitor’s lien. Once a solicitor’s services are discharged and his fees paid, he cannot refuse a client’s request for release of those documents that are the property of his client. If he requires to retain a set of the documents in anticipation of future complications arising over that matter with his client, he may make copies but he must bear the copying expenses.

It is advisable for the outgoing solicitor to make a copy of the documents before handling the matter over to the incoming solicitor. However, the outgoing solicitor must bear the costs of making copies of such documents as it is for his own protection in anticipation of future complications. [Afternote: Refer to 2011 Guide P62 Paragraph 3]

Documents prepared by the solicitor for his client include his attendance notes, his notes on

It is no excuse for the solicitor to refuse release to the client of documents that are the property of the client just because the client has previously been provided with copied and/or that matter is completed. 20

PDR 1989, Chapter 1 paragraph 20: When appearing before a Judge or Registrar in Chambers, either in the Supreme or Subordinate Counsel’s Robes and gowns Complaints have been received that Counsel’s robes, wing collars and bands are “borrowed” indiscriminately and left lying on the benches outside the Bar Room of the Supreme Court after use. Member may not be aware that the aforesaid court attire is the property of individual member of the Bar and should therefore not be worn without the owner’s permission.

Courts, male solicitors appearing should be dressed in an ordinary long-sleeved white shirt with a turndown collar, a tie of a subdued or sober colour, a dark jacket, dark tros and black or plain coloured shoes. Female solicitors should be dressed in a longsleeved white blouse high to the neck, a dark jacket, a dark skirt or dark tros and black or plain coloured shoes. Conspicuous jewellery or ornaments should not be worn. When appearing in open Court in the Supreme Court, a gown should be worn over the above described attire, and for Senior Counsels appearing in open Court in the Supreme Court, a gown in the design of those worn by Queen’s Counsel of England and Wales should be worn. However solicitors appearing in open Court in the Subordinate Courts need not be obliged to wear a gown. [Afternote: Refer to:

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PDR 1989, Chapter 1 paragraph 21: A solicitor should not assist unauthorised persons who are not employed by his law practice to commit Work Done by unauthorised Person a breach of section 33 of the Act by merely g or of the Bar are reminded, with reference “lending his name” to documents prepared by such unauthorised persons, including but not limited to documents relating to the incorporation or formation by merely g documents relating to the of companies. incorporation or formation of a limited company [Afternote: Refer to 2011 Guide P184 Paragraph 1]

22

PDR 1989, Chapter 1 paragraph 24(a) Letters threatening Criminal Proceedings / – (d): Letters threatening Criminal offensive Letters Proceedings, offensive Letters, threatening letters Letters threatening Criminal Proceedings / offensive Letters (a) Letters threatening Criminal Proceedings also improper for a solicitor to communicate

in writing or otherwise a threat of criminal Solicitor’s letter stating that his clients “may proceedings in order to achieve a stated objective in consider lodging a report with the Police with any circumstance, for example, to compel a witness the view to the arrest of the drawer of the dishonoured cheque for the offence under the to sign a written statement despatched to him. Penal Code”. However, it is not improper for a solicitor to The Council’s reply to the solicitor concerned communicate with a party requiring him to comply reads as follows:with a particular order, enment or statutory provision, and state that failure to do so will result “The Council agrees that a criminal offence in that party being liable to an offence or penalty. It may have been disclosed, but that in itself is is further permissible for the solicitor to identify the offence or penalty under reference. the recovery of a civil debt, as you did in the postscript complained of by threat of criminal [Refer to 2011 Guide P92 Paragraph 1] proceedings. Regardless of who, in fact, is the defendant, the offensive language used by solicitors to of Council still considers that the of your the public and to clients of other solicitors. postscript referred to above were improper.” We reproduce below the relevant text of page 81 of “A Guide to the Professional Conduct of Solicitors”:of the Council of the Singapore Advocates & “Writing Offensive Letters to write offensive letters to clients of other solicitors, to Government departments and to the public. The use of insulting language and indulging in acrimonious correspondence are neither in the interests of the client nor conducive to the maintenance of the good name of the profession.” The Council is of the view that the use of offensive solicitor.

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b) Letters threatening Proceedings (PDR/3/88)

Criminal [Refer to 2011 Guide P93 Paragraph 1]

Item 24 at page 13 of the Law Society’s Practice Direction and Rulings 1984 prohibits a solicitor despatching letters threatening criminal proceedings as a means of bringing pressure to bear for the recovery of a civil debt. Recent experience indicates that some solicitors feel it permissible to send letters threatening criminal proceedings in order to achieve various ends e.g. to compel a witness to attend at the a witness to sign a written statement despatched to him etc.

letters containing threats of criminal proceedings to coerce the other party to act in accordance with the solicitor’s demands or into making a statement in favour of his client’s case. The use of insulting and threatening language are neither in the interests of the client nor conducive to the maintenance of the good name of the profession. [Refer to 2011 Guide P92 Paragraph 1]

After giving the matter due consideration, the Council adopts the view that it is improper for a solicitor to communicate in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance. However, it is not improper for a solicitor to communicate with a party requiring him to comply with a particular order, enment or statutory provision, and state that failure so to do will result in that party being liable to an offence or penalty. It is further permissible for the solicitor to identify the offence or penalty under reference. Example: A Solicitor writes to his client’s tenant requesting a written statement of subletting under Section 21 of the Control of Rent Act Cap. 58. that failure to comply with his request will constitute

that on conviction of the statutory offence, the tenant to imprisonment for a team [sic] not exceeding six

unless the tenant complies with his request, his client

request it is permissible for the solicitor to write to the tenant further to inform him that his client will be initiating a prosecution or has initiated a prosecution.

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c) offensive Letters The Council has received complaints relating to offensive language used by solicitors to of the public and to clients of other solicitors. We reproduce below the relevant text of page 81 of “A Guide to the Professional Conduct of Solicitors”:“Writing Offensive Letters a solicitor to write offensive letters to clients of other solicitors, to Government departments and to the public. The use of insulting language and indulging in acrimonious correspondence are neither in the interests of the client nor conducive to the maintenance of the good name of the profession.” The Council is of the view that the use of conduct for a solicitor.

d) threatening Letters In two recent cases a penalty was imposed on solicitors writing letters containing threats of criminal proceedings to coerce the other party to act in accordance with the solicitor’s demands or into making a statement in favour of their client’s case. The Council considers that it is threatening letters. The use of insulting and threatening language are neither in the interests of the client nor conducive to the maintenance of the good name of the profession. of the Bar are advised that in future cases the Council will view such matters as a serious breach of the etiquette rules

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PDR 1989, Chapter 1 paragraph 25(a): Acting for both Petitioning Creditors and Provisional Liquidator The Council takes the view that in a situation

creditors and the Court appoints a provisional petitioning creditors and the Court appoints a liquidator for the company pending the outcome provisional liquidator for the company pending of the winding-up petition, it is undesirable for the the outcome of the winding-up petition it is solicitors for the petitioning creditors to act also on behalf of the provisional liquidator. undesirable for the solicitors for the petitioning creditors to act also on behalf of the provisional [Afternote: Refer to the PCR: liquidator.

Rule 29: Not to act for both parties in dispute; Rule 30: Not to act against client’s interest; and 2011 Guide P33 Paragraph 3] 24

PDR 1989, Chapter 1 paragraph 25(c): interest

the following problem namely his clients had granted banking facilities to Mr A and Mr B previously. The banking facilities were secured by a mortgage of a property. The subject property had since been disposed of long ago by A & B. Notwithstanding the discharge of the mortgage of the aforesaid property, there was still an outstanding sum of money remaining due from A & B under their general balance of with his clients.

posed the following problem namely his clients had granted banking facilities to Mr A and Mr B previously. The banking facilities were secured by a mortgage of a property. The subject property had since been disposed of long ago by A & B. Notwithstanding the discharge of the mortgage of the aforesaid property, there was still an outstanding sum of money remaining His clients had instructed him to commence legal due from A & B under their general balance of action against the said ’A’ only and accordingly the with his clients. sum of $2,577.86 together with interest was claimed. His clients had instructed him to commence The Plaintiffs then obtained Judgment by way of legal action against the said ’A’ only and summary judgment under Order 14 of the Rules of accordingly the sum of $2,577.86 together with the Subordinate Courts against ‘A’ up to the date interest was claimed. of Judgement obtained, no objection was made by The Plaintiffs then obtained Judgment by way of summary judgment under Order 14 of the of interest in respect of him acting on behalf of the Rules of the Subordinate Courts against ‘A’ up Plaintiffs in the matter. There had been no stay of to the date of Judgement obtained, no objection execution of the Judgment obtained by the Plaintiffs. bankruptcy proceedings against ‘A’. He had now him acting on behalf of the Plaintiffs in the received a fax letter from ‘C’ drawing his attention matter. There had been no stay of execution to the Practice Circular No. 17 of the Law Society of the Judgment obtained by the Plaintiffs. Accordingly, on behalf of the Plaintiffs he had Interest” which state inter alia “A solicitor previously had now received a fax letter from ‘C’ drawing acting for the mortgagor and mortgagee should refrain his attention to the Practice Circular No. 17 of from acting for either parties in litigation pertaining the Law Society dated 30th July 1988 under to the same transaction irrespective of whether the loan has been fully disbursed. inter alia “A solicitor previously acting for the mortgagor and mortgagee should refrain from acting for either parties in litigation pertaining 142


to the same transaction irrespective of whether The member has replied to ‘C’ explaining that the the loan has been fully disbursed. The member has replied to ‘C’ explaining that the aforesaid that a solicitor acting previously for the mortgagor a solicitor acting previously for the mortgagor of them in litigation pertaining to the mortgage transaction and not in his case where the claim is either of them in litigation pertaining to the based on the outstanding balance of the current mortgage transaction and not in his case where between the Plaintiffs and ‘A’. Albeit that the claim is based on the outstanding balance the current had been secured by a mortgage of the current between the Plaintiffs of a property in which the member acted for A, B & and ‘A’. Albeit that the current had been secured by a mortgage of a property in the Judgment. which the member acted for A, B & Plaintiffs. The Council had replied stating that in the Judgment. circumstances described in his said letter, the The Council has replied stating that in the for the member to act for the Bank in the recovery circumstances described in his said letter, proceedings, notwithstanding the fact that he had previously acted for the mortgagor and mortgagee in proper for the member to act for the Bank in the securing of the banking facilities by a mortgage the recovery proceedings, notwithstanding of the mortgagor’s property. There was no general the fact that he had previously acted for the rule that a Solicitor who had acted for some person mortgagor and mortgagee in the securing of either before or after litigation began cannot in any the banking facilities by a mortgage of the case act for the opposite party. In each case, the Court mortgagor’s property. There was no general rule that a Solicitor who had acted for some Solicitor so acting. person either before or after litigation began cannot in any case act for the opposite party. [Society’s Note: should refer to Vorobiev Nikolay v Lush Johan Frederick Peters and others that mischief was result from the Solicitor so [2011] 1 SLR 663 (“Vorobiev Nikolay”) on the acting. If there was no danger of any breach approach taken by the Court in determining whether there is a breach of Rule 31 PCR. While the disclosure opposite party in a particular situation then the whether the two matters in question are considered The decision on point is the English Court of “same or related” under Rule 31 PCR, it is important Appeal case in Rakusen v Ellis, Munday & risk, the Court may still consider the two matters to be “related” if they involved the same asset, liability, In the member’s case, there appeared to be no transaction or legal dispute (see: Vorobiev Nikolay at [25]”. from him acting for the Bank in the recovery proceedings against the previous mortgagor. [Afternote: Refer to the PCR: a) Rule 29: Not to act for both parties in dispute; and b) Rule 31: Not to act against client].

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PDR 1989, Chapter 1 paragraph 25(d): Acting for both Debenture holder of a Company and Receiver appointed by the holder

A member has queries as to whether a solicitor can act for a debenture holder of a company as It is not objectionable in principle for a receiver to well as for the receiver appointed by the said use the same solicitor that acts for the appointer, the debenture holder. The receiver is almost invariably debenture holder. a public ant who should be able to identify The Council has replied stating that it is not objectionable in principle for a receiver to use interest between the company that he represents the same solicitor that acts for the appointer, the debenture holder. The receiver is almost then the receiver should use different solicitors. This invariably a Public ant who should be able to identify a situation that is likely to holder, and the solicitors can in such a situation be company that he represents and appointer. expected to inform the receiver accordingly and advise that he engages different solicitors. receiver should use different solicitors. This for the debenture holder, and the solicitors can in such a situation be expected to inform the receiver accordingly and advise that he engages [Afternote: different solicitors. not fanciful, and in this respect, “potential”

Refer to the PCR:

can be remote. The appointer is responsible for the payment c) Rule 29: Not to act for both parties in dispute; of the receiver’s fees and expenses, and these fees and expenses are normally recoverable d) Rule 30: Not to act against client’s interest; and by the appointer from the company. Where e) 2011 Guide P34 Paragraph really no reason for the receiver to use different solicitors, as this may lead to a duplication in legal fees which cannot be in the company’s interests. Each case should be judged on its own circumstances, and there can be no single rule applicable to all cases.

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PDR 1989, Chapter 1 paragraph 25(e): Acting for both Complainant and Accused inquiry on etiquette and Conduct

When a solicitor has been retained by the complainant The following problem was referred to the to act for him in a criminal case, the solicitor cannot Committee for a ruling:subsequently represent the accused person in his defence in the same case, notwithstanding that the A solicitor received a fee and was retained to act for the complainant in a case in the copy of the police report and did not nothing further preliminary inquiry. The solicitor concerned for the complainant. [Afternote: the report from the police nothing further was done by the solicitor concerned. The accused Refer to: in the same case now wished to instruct the solicitor to represent him in his defence in that case. The Committee ruled that on the facts the solicitor should not now act for the b) Rule 30 of PCR: Not to act against client’s interest; accused.” c) Rule 31 of PCR: Not to act against client; and (Extract from the Minutes of the 7th meeting of Singapore Bar Committee held on the 12th d) 2011 Guide P33 Paragraph 4] 27

PDR 1989, Chapter 1 paragraph 26(b): The Comptroller of Income Tax had previously called upon a member of the Bar to supply certain Request for information

particulars relating to the purchase of certain The attention of the Committee has been drawn to immovable properties in respect of which the solicitor a recent case in which the Comptroller of Income in question was acting for the purchaser. Tax has called upon a member of the Bar to supply certain particulars relating to the purchase of certain The request of the Comptroller of Income Tax was immovable properties in respect of which the made under then (currently section 65B(3) of the Income Tax Act (Cap. solicitor in question was acting for the purchaser. 134, 2008 Rev. Ed. Sing)). The solicitor in question The request of the Comptroller of Income Tax had refused to supply the information on the ground that solicitors are prohibited by section 128 of the Tax Act. The solicitor in question has refused to Evidence Act (currently Cap. 97, 1997 Rev. Ed. Sing) supply the information on the ground that advocates from disclosing any communication made to him in and solicitors are prohibited by section 128 of the the course and for the purpose of his employment. Evidence Act from disclosing any communication The Comptroller had not itted the correctness of made to him in the course and for the purpose of his the stand taken by the solicitor, but he had for the time employment. The Comptroller has not itted the being ceased to pursue his request. The solicitor in correctness of the stand taken by the solicitor, but he question had in reply to the Comptroller maintained has for the time being ceased to pursue his request. that “the secrecy of communication between solicitor The solicitor in question has reply to the Comptroller and client is one of the cardinal principles on which maintained that “the secrecy of communi-cation the present system of the istration of justice in between solicitor and client is one of the cardinal this country is founded.” principles on which the present system of the istration of justice in this country is founded.” The Council agrees with the stand taken by the abovementioned solicitor, and if any member of the The Council agrees with the stand taken by the abovementioned solicitor, and if any member of the from the Comptroller of Income Tax, he is invited to refer the matter to the Council for guidance. from the Comptroller of Income Tax he is invited to refer the matter to the Council for guidance.

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PDR 1989, Chapter 1 paragraph 27: Communication with former Client Relationships between one Solicitor and Another As between of the profession, one’s word

should be one’s bond and should be accepted as such In dealing with other of the profession, by the other solicitors unless there is strong ground to one should bear in mind the words of Sir doubt the integrity of that solicitor. Thomas Lund, C.B.E. “Do unto others as you would have them do unto you.” In normal circumstances, it should not be necessary As between of the profession, one’s word should be one’s bond and should be accepted as such by the other solicitors unless there is strong ground to doubt the integrity of that solicitor. In normal circumstances, it should not be

before parting with money or property or document of a former client to the new solicitor that he has instructed to act for him. It is improper for a former solicitor to communicate with the client who has left him which would amount to a breach of rule 48 of the PCR, even if the communication is only with

solicitor has written to that solicitor. former client before parting with money or property or document of a former client to [Afternote: Refer to 2011 Guide P77 Paragraph 1] the new solicitor that he has instructed to act for him. It is improper for a former solicitor to communicate with the client who has left him which would amount to a breach of the well-known general rule that a solicitor should not communicate with the client of another solicitor without the consent and approval of that solicitor, even if the communication is only the other solicitor has written to that solicitor. 29

PDR 1989, Chapter 1 paragraph 29: When a solicitor seeks a professional conference with his colleague, he shall call on the solicitor Professional Conference from whom it is sought, irrespective of whether the solicitor seeking the conference is senior in call or not. When the appointment has been made, the solicitor concerned should ensure, that as a matter of courtesy, his call is attended to promptly.

of the Bar are informed that when a Solicitor seeks a professional conference with his colleague, he should call on the solicitor from whom it is sought, irrespective of whether the solicitor seeking the conference is senior in [Afternote: call or not.

When the appointment has been made, the Refer to: solicitor concerned should ensure that as a matter of courtesy, his call is attended to a) Rule 47 of the PCR: Relationship with other advocates and solicitors; and promptly. b) 2011 Guide P71 Paragraph 2].

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PDR 1989, Chapter 1 paragraph 30: A solicitor shall not appear in Court or the Chambers in any case in which he has reason to believe that Solicitors as Witnesses

he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness he ought not to appear if he can retire without jeopardising his client’s interests, he should discharge himself and in so doing, take all reasonable steps to ensure that he does not jeopardise his client’s interests.

“in Court or the Chambers” in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness he ought not to continue to appear if he can retire without jeopardising his client’s A solicitor shall not appear before an Appellate interests. Tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in appear before an Appellate Tribunal if in the the Court below. case under appeal he has been a witness on a material and disputed question of fact in the Nothing contained in this Practice Direction shall Court below. formal or undisputed facts in matters in which he acts or appears. an Advocate and Solicitor from swearing an [Afternote: matters in which he acts or appears. Refer to: (Rules Regulating the Practice & Etiquette of a) Rule 64 of the PCR b) Ethics in Practice, “Rule 64 of the Legal Profession (Professional Conduct) Rules - Solicitor not to act if he is a witness” (Singapore Law Gazette, July 2009); and

the Rules of Etiquette, Council ruling:“Solicitor as a Witness

In general, it is unwise for a solicitor who is engaged as an advocate, discovers that it is c) 2011 Guide P103 Paragraph 1] obvious that he will be called to give evidence on behalf of his client, then he should withdraw from the conduct of the case as Advocate, unless, as stated above, his evidence is to be purely formal.”

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PDR 1989, Chapter 1 paragraph 31: Punctuality at Court hearings Punctuality at 0.14 Application

The Council would like to stress that all The Council made representations to the should be punctual for all Court hearings. Council Registrar of the Supreme Court in relation to also suggest that make the appropriate estimation for lengths of adjournments in order to mention of adjournments on Summons day. assist in the general istration of the Court’s time. The Council has been approached to suggest an allocated time for those who appear to mention [Afternote: their cases i.e. for adjournments or for consent orders. The Registrar has replied in extenso to Refer to: the Society and we attach herewith in full his reply. a) Part II, paragraph 13(3) of the Supreme Court’s Practice Directions: Attendance of solicitors in Court The Council is of the view that the present and mentioning on behalf of other solicitors; and system is a better choice and we stress that all should be punctual. We also suggest b) Part XV, paragraph 134(2) of the Subordinate that make the appropriate estimation Courts’ Practice Directions: Attendance of solicitors for lengths of adjournments in order to assist in in Court]. the general istration of the Court’s time. 32

PDR 1989, Chapter 1 paragraph 33(a): entering Judgment by Default – 2 Working Judgment in Default – 24-hour notice Days’ notice In proceedings in which an Advocate and Solicitor a) Rule 70 PCR is engaged for one or more parties and whose name appears on the Court record accordingly, no [Council’s Practice Direction, Singapore Law Advocate and Solicitor representing other parties Gazette, May 2001] or another party shall enter up judgment by default Rule 70 PCR is applicable when judgment in default Advocate and Solicitor or take advantage of delay of defence is to be entered against a party or when a divorce petition is to be set down as uncontested mentioned Advocate and Solicitor written notice solicitor on record, judgment cannot be entered of his intention so to do, and 24 hours shall have in default of defence nor the petition set down as uncontested, without giving the other solicitor the 48 mentioned Advocate and Solicitor. hour written notice required by the PCR. [Society’s Note: The notice period was amended to two working (Rules Regulating the Practice & Etiquette of days under rule 70 PCR wef 1 September 2001.] Rule 70 was not intended to be applicable in any other

PDR 1989, Chapter 1 paragraph 33(b): event when judgment can be entered by default or Judgment/Pleadings in Default: 24-hour otherwise. In particular, it was not intended to apply in instances when judgment is being entered for a notice

failure of a party to comply with Orders of Court. The Council is of the view that the words of the Practice Ruling in question i.e. “enter up judgment The Council has requested the Ethics Committee to re-draft r 70 to remove any doubt on its application. mentioned Advocate and Solicitor or take advantage PCR, which was added in 2001.] and Solicitor …” should be read disjunctively. The Council con-siders an Answer in divorce proceedings (b) Amendments to rule 70 PCR in 2001 to fall within the meaning of a pleading and the [“Understanding the Recent Amendments to second limb in the age quoted has application. No the Professional Conduct and Publicity Rules”, Singapore Law Gazette, December 2001] divorce proceedings without giving the prescribed 24 hours’ notice. “There are several amendments to the previous r 70. from 48 hours to 2 working days. 148


PDR 1989, Chapter 1 paragraph 33(c): The second amendment is to make clear that the 2 working days’ notice to be given to a solicitor is only applicable in tow enter up Judgment in Default The Council has ruled that the phrase “enter up judgment by default” must be construed to

[Society’s Note: see Council’s Practice Direction on rule 70 in default, in cases where such an application PCR above.] is necessary. The requisite 24 hours’ notice is therefore necessary before the application for ... [T]he Council has ruled that the 2 working days’ notice can only be given after the lapse of the 14 days provided earlier. The other amendments provide that r 70 does not apply in cases where the time limits are set by an Order of Court solicitor to give 2 working days’ notice before taking action for not complying with an Order of Court: for example, if a Banker’s guarantee is to be delivered within 14 days per an Order of Court but is not done, a solicitor is not required to give 2 working days’ notice after the 14th day in order to enter judgment in default. This is also the case in dealing with ‘unless’ orders. Further amendments to r 70 are meant to deal with the undesirable practice of some solicitors in giving fellow solicitors notice after working hours and deeming that the 48-hour notice period starts to run immediately thereafter. Council is of the view that such conduct is against the best traditions of the Bar and should not be encouraged. The rule now 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

c) giving notice to a litigant-in-person

Rule 70 PCR does not require a solicitor to give tow working days’ notice to a litigant-in-person.

d) Judgment in default of appearance is to be entered 2009]

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Rule 70 PCR does not apply where judgment in default of appearance is to be entered. Rule 70 PCR refers to solicitors “on record”. A solicitor Appearance on behalf of his client pursuant to the solicitor’s professional judgment whether he wishes to give such notice to the opposing party’s solicitor before entering judgment in default of appearance.

e) Computation of “2 working days” i) Notice given on a working day before 4pm If notice was given on a working day (say Tuesday, 20 would be deemed to have been given on Tuesday, 20 that default judgment cannot be entered until written notice of such intention to do so has been given and two working days have elapsed after service of such notice, the counting of the two working days begins 22 November 2007. ii) Notice given on a working day after 4pm If notice was given on a working day (say Tuesday, 20 would be deemed to be given on the next working day, Wednesday, 21 November 2007, based on rule 22 November 2007 and ends at midnight of Friday (a iii) Notice given on a non-working day If notice was given on a non-working day (say Sunday, to be given on the next working day, Monday, 26 that the counting of the two working days begins on November 2007. [Afternote: Refer to 2011 Guide P86-88]

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PDR 1989, Chapter 1 paragraph 34: If an extension of time within which to plead be given to a party he shall, if so required, accept short extension of time notice of trial at the next sittings of the Court as if the pleading had been delivered in the time ordinarily limited for its delivery without any extension, as the party allowing the extension would have been in a position to have given notice of trial for such sittings.

If an extension of time within which to plead be given to a party he shall, if so required, accept short notice of trial at the next sittings of the Court in any case in which had the pleading been delivered in the time ordinarily limited for its delivery without any extension, the party [Afternote: allowing the extension would have been in a position to have given notice of trial for such Refer to: sittings. a) Part II, paragraph 10(4) of Supreme Court’s (Rules Regulating the Practice & Etiquette of Practice Directions: Calculation of time; and

34

b) Order 3, rule 4 of the Rules of Court: Extension, etc., of time.] PDR 1989, Chapter 1 paragraph 35: It has come to the attention of the Council that there

Commissioner for oaths: Attestation by as Commissioner for Oaths in a matter in which a an Associate It has come to the attention of the Council that there have been cases in which an Associate

The Council is of the view that in order to avoid any Associate should not act as Commissioner of Oaths

as advocate and solicitor.

whom he is associated is acting as solicitor, and vice Oaths versa. This is in accordance with the current rule 9 of the Commissioner for Oaths Rules 1997. expressly prohibit this practice, the Council is of the view that, in order to avoid any suggestion Although

the

Commissioner

for

Associate should not act as Commissioner of Oaths in any matter in which any member of advocate and solicitor, and vice versa.

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PDR 1989, Chapter 1 paragraph 37(a): or retainer non-Refundable Deposit or Retainer The Council has received several complaints The Council has received several complaints about about engaged in contentious work engaged in contentious work requiring their requiring their clients to pay a “non-refundable clients to pay a “non-refundable deposit or retainer.” deposit or retainer.” are reminded provided that “Subject to the provisions of any other written law, a solicitor may make an agreement in writing “Subject to the provisions of any other written with his client respecting the amount and manner of law, a solicitor may make an agreement in payment for the whole or any part of his costs in respect writing with his client respecting the amount of contentious business done or to be done by the solicitor, and manner of payment for the whole or any either by a gross sum, or otherwise, and at either the same part of his costs in respect of contentious rate as or a greater or a less rate than that at which he would business done or to be done by the solicitor, either by a gross sum, or otherwise, and at either provides that “Every such agreement shall be signed by the the same rate as or a greater or a less rate than client and shall be subject to the provisions and conditions that at which he would otherwise be entitled to every question respecting such agreement as is referred to “Every such agreement shall be signed by the in Section 111 may be examined and determined and the client and shall be subject to the provisions agreement may be enforced or set aside. Section and conditions contained in this Part.” Section provides that “If the of the agreement are deemed by the court or judge to be unfair or unreasonable, the respecting such agreement as is referred to in agreement may be declared void ...” and section Section 111 may be examined and determined empowers the court or a judge to order the whole or any and the agreement may be enforced or set aside. portion of the amount received by a solicitor to be repaid Section 112 provides that “If the of the by him on such and conditions as to the court or agreement are deemed by the court or judge to judge seem just. be unfair or unreasonable, the agreement may be declared void ...” and section 112 empowers The Council emphasises that section 111 of the Act the court or a judge to order the whole or any does not give solicitors a carte blanche to agree to an portion of the amount received by a solicitor to unreasonable fee and that it is well settled that overbe repaid by him on such and conditions charging a client whether in a bill of costs or otherwise may amount to professional misconduct. as to the court or judge seem just. The Council emphasises that section 111 of the Act does not give solicitors a carte blanche to agree to an unreasonable fee and that it is well settled that over-charging a client whether in a bill of costs or otherwise may amount to professional misconduct.

deposit or retainer The Council has noted that there may be instances where felt that they would be entitled to keep their fees collected as a non-refundable deposit or retainer irrespective of the amount of work done so long as clients agree to the arrangement. This is not so in all cases. It is recommended that note sections 111, 112 and 113 of the Act and be aware of the need to comply with them. [Afternote: Refer to 2011 Guide P131 Paragraph 4]

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PD 1/1999: Storage and Destruction of Storage and Destruction of Documents Documents Return of Documents and Storage of files This Practice Direction supersedes the that belong to them once the retainer is terminated, Council’s Practice Direction published in the subject to such rights as may arise by reason of the 1989 Publication, the Law Society’s Practice solicitor’s lien. Direction & Rulings.

Return of Documents and Storage of files

wish to advise clients in writing immediately prior to

documents that belong to them once the retainer is terminated, subject to such rights as may arise by reason of the solicitor’s lien. of prudence, wish to advise clients in writing

concerned if they require any documents in the Retention Period of Closed files are relevant considerations for determining retention periods.

Retention Period of Closed files

general Considerations the following are relevant considerations for determining retention periods

general Considerations

minimum of 6 years from the time when the subject matter is wholly completed.

a minimum of 6 years from the time when the subject matter is wholly completed. transactions, and the likelihood of any claims arising to decide if further retention is appropriate. the particular transactions, and the likelihood of any claims arising to decide if further retention with their clients. However must carefully is appropriate. consider the implications in each case, arising from storage period (followed by destruction of the must carefully consider the implications in each outlined below.

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6.4 In cases where a party was under a In cases where a party was under a disability at the disability at the time of the action or where time of the action or where judgment for provisional judgment for provisional damages has been for a minimum period of 6 years from the date on period of 6 years from the date on which the judgment has been obtained. judgment has been obtained. should also take into the relevant should also take into the statutory provisions, some examples of which are set relevant statutory provisions, some examples out below: of which are set out below: i. Section 24A of the Limitation Act (Cap. 163, i. Section 24A of the Limitation Act (Cap. 163, 1996 Rev. Ed. Sing 6 years from the date from when the cause of years from the date from when the cause of action action accrued or 3 years from the date on which accrued or 3 years from the date on which the Plaintiff the Plaintiff knew or ought to have known the knew or ought to have known the relevant facts, relevant facts, whichever is later, subject to an whichever is later, subject to an overriding time limit overriding time limit of 15 years under Section of 15 years under Section 24B. 24B. ii. Section 46 of the Goods and Services Tax Act (Cap ii. Section 46 of the Goods and Services Tax 117A, 2005 Rev. Ed. Sing to be kept for not less than 5 years, subject to the records to be kept for not less than 7 years, Comptroller agreeing to a shorter period. subject to the Comptroller agreeing to a shorter period. iii. Section 67 of the Income Tax Act (Cap 134, 2008 iii. Section 67 of the Income Tax Act (Cap 134, income relates to be kept for 5 years from the relevant year of assessment. income relates to be kept for 7 years from the relevant year of assessment. iv. Section 199 of the Companies Act (Cap 50, 2006 iv. Section 199 of the Companies Act (Cap of the company concerned to be retained by the company for 5 years from completion of the relevant to be retained by the company for 7 years transaction or operation. from completion of the relevant transaction or 6 6.6 operation. years from completion of the relevant transaction. the following periods: for the following periods: records that explain the transactions and

years

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Destruction of Documents

Destruction of Documents

Documents, in particular, original documents, Documents, in particular, original documents, such such as agreements, deeds, guarantees and should not be destroyed without the prior consent of without the prior consent of the Owner of that the Owner of that document. document.

ownership of Documents

ownership of Documents

For directions on ownership of documents, are referred to paragraphs 1-3 of the revised edition of the [Law Society of England’s Guidance Note] on ownership, storage and destruction of documents, which is reproduced with the kind permission of the Law Society of England as an annexure to this practice direction.

Annexure

Guidance - ownership, storage and destruction of documents retainer is terminated?

For directions on ownership of documents, are referred to paragraphs 1-3 of the revised February 1999 edition of Cordery on Legal Services (Issue 35) Guidance Note on ownership, storage and destruction of documents, which is reproduced with the kind permission of the Law Society of England as an annexure to this practice direction. Annexure Guidance - ownership, storage and destruction of documents is terminated? documents which belong to you, some which belong to the client and possibly others belonging to a third party. Documents in existence before the retainer, held by you as agent for and on behalf of the client or third party, must be dealt with in accordance with the instructions of the client or third party (subject to

documents which belong to you, some which belong to the client and possibly, others belonging to a third party. Documents in existence before the retainer, held by you as agent for and on behalf of the client or third party, must be dealt with in accordance with the retainer fall into four broad categories (see also the instructions of the client or third party existence during the retainer fall into four broad categories (see also Cordery on Solicitors). client and which have been paid for by the client, either directly or indirectly, belong to the client.

of the client and which have been paid for by Examples: instructions and briefs; most attendance the client, either directly or indirectly, belong to the client. letters received by you; copies of letters written by you to third parties if contained in the client’s case Examples: instructions and briefs; most attendance There would appear to be a distinction between letters received by you; copies of letters written by you copies of letters written to the client (which may be retained by you) and copies of letter, written to third used for the purpose of the client’s business. There parties. would appear to be a distinction between copies of letters written to the client (which may be retained by you) and copies of letter, written to third parties.

155


B. Documents prepared by you for your own benefit or protection, the preparation of which is not regarded as an is not regarded as an item chargeable against item chargeable against the client, belong to you. the client, belong to you. Examples: copies of letters written to the client: copies Examples: copies of letters written to the client: made for your own benefit of a letter received by you; copies of letters written by you to third parties if contained received by you; copies of letters written by you in a filing system of all letters written in your office; tape recordings of conversations; inter-office memoranda; entries in diaries, time sheets; computerised records; in diaries, time sheets; computerised records;

C. Documents sent to you by the client during the retainer, the property in which was intended at the date of despatch to from the client to you, belong to you.

the retainer, the property in which was intended at the date of despatch to from the client to Examples: letters, authorities and instructions written or you, belong to you. given to you by the client. Examples: letters, authorities and instructions D. Documents prepared by a third party during the course written or given to you by the client. belong to the client. the course of the retainer and sent to you Example: receipts and vouchers for disbursements made by you on behalf of the client; medical and witness reports, client. Example: receipts and vouchers for counsel’s advice and opinion; letters received by you from disbursements made by you on behalf of the third parties. client; medical and witness reports, counsel’s advice and opinion; letters received by you from third parties. In the Society’s opinion the documents which fall into retainer?

tly. Such documents can only be disclosed to third parties with the consent of both or all of the clients and the In the Law Society’s opinion the documents original papers can only be given to one client with the both or all of the clients tly. Such documents of the relevant documents at their own expense. can only be disclosed to third parties with the consent of both or all of the clients and the original papers can only be given to one client two separate retainers? entitled to a copy of the relevant documents at their own expense. two separate retainers?

156


This is usually the case where you have acted for the buyer/borrower and for the lender on a cotemporaneous purchase and mortgage, or for the borrower and for the new lender on a remortgage. You will need to sort through the papers. There may, however, be documents which belong to the borrower but which the Iender is nevertheless entitled to see as they relate to that part of your work where the lender and borrower can be said to have a common interest, such as the deduction of title, the acquisition of a good title to the property and ancillary legal issues such as the use of the property.

37

This is usually the case where you have acted for the buyer/borrower and for the lender on a contemporaneous purchase and mortgage, or for the borrower and for the new lender on a re-mortgage. the ownership of the various papers (see question which belong to the borrower but which the Iender is nevertheless entitled to see as they relate to that part of your work where the lender and borrower can be said to have a common interest, such as the deduction of title, the acquisition of a good title to the property and ancillary legal issues such as the use of the property. [Afternote: Refer to 2011 Guide P186-189]

PD 2/2013: Photocopy Charges

(a) former Council’s Practice Direction 1 of 2003

April 2013.

1. this Practice Direction takes effect from 15 february 2003.

2. Council’s Practice Direction 1 of 2003 issued on 15 February 2003 had set a new standard 2. the Council’s Practice Direction issued on

1 September 1987 (former PDR 1989, Chapter

cost involved in acquiring a machine. The 1, para. 42) had set photocopy charges at

30 cents a sheet having regard to the costs

cents per sheet where the law practice has its involved in acquiring a machine. own machine.

3. the Council after a careful review has

3. A query has recently been brought to the decided to recommend a new standard charge, attention of the Council of the Law Society

cost of leasing or acquiring a machine. the

photocopying charge of 15 cents applies in respect of per page printed or per piece of paper 15 cents per sheet where the law practice has its own machine. used. 4. For the avoidance of doubt, the recommended in respect of per page printed. Therefore, in the case of double-sided printing, where one piece of paper is used to print two pages, the recommended photocopying charge is 30 cents. 5. After review, the Council has also decided to recommend the following photocopying charges for the respective paper sizes:

157

Annex B : Practice Directions and Rulings no. Practice Directions Recommended 37 Black and White or Colour Photocopying

Paper Size

1.


A4

$0.15

2.


A3

$0.50

3.


A1

$3.00

4.


A0

$5.00

5.

Colour Photocopying

A4

$1.00

Colour Photocopying

A3

6.

Recommended Photocopying Charge Per Page (i.e. Side

1. This Practice Direction takes effect on 9 April 2013. 2.Council’s Practice Direction 1 of 2003 issued on 15 February 2003 had set a new standard charge, as in acquiring a machine. The Council recommended practice has its own machine. 3. A query has recently been brought to the attention of the Council of the Law Society (the charge of 15 cents applies in respect of per page printed or per piece of paper used. 4.

$2.00

For the avoidance of doubt, the recommended

of per page printed. Therefore, in the case of doublesided printing, where one piece of paper is used to print two pages, the recommended photocopying charge is 30 cents. 5. After review, the Council has also decided to recommend the following photocopying charges for the respective paper sizes: Black and White or Colour Photocopying

Paper Size

Recommended Photocopying Charge Per Page (i.e. Side

1.


A4

$0.15

2.


A3

$0.50

3.


A1

$3.00

4.


A0

$5.00

5.

Colour Photocopying

A4

$1.00

6.

Colour Photocopying

A3

$2.00

158


PDR 1989, Chapter 1 paragraph 43: visit of the Bar who visit their clients who are serving sentences in a Prison or undergoing treatment to Prisons/Rehabilitation Centres of the Bar who visit their clients who are serving sentences in a Prison or undergoing treatment in a Rehabilitation Centre are requested to produce a letter from the Law Firm they represent to the Authorities concerned for permission to visit their clients. Failure or omission on the part of to adhere to this practice may result in them not being allowed to see their respective clients by the Authorities.

38

in a Rehabilitation Centre should access the Singapore Prisons Service’s website at http://www.prisons. gov.sg/content/sps/default/connectwithus/for_ legalBoard_of_committees.html for the procedure to book their interview time with inmates.

PDR 1989, Chapter 1 paragraph 44: The Singapore Prison Service has informed that the Requests by Lawyers to interview practices listed in the previous Prison Standing Order series No. 160 (now Prison Standing Order No. B28) Prisoners dated 17 July 1987 reproduced below are still largely I reproduce below a Prison Standing Order No. valid today and in practice. A consistent set of visit 160 from the Director of Prisons, Singapore for instructions can be found on the Singapore Prisons Internet concerning visits request (see: http://www. your attention:prisons.gov.sg/content/sps/default/connectwithus/ for_legalBoard_of_committees.html). Introduction A prisoner who is party to legal proceedings, civil or criminal, shall be given reasonable “Introduction facilities to consult a lawyer. A prisoner who is party to legal proceedings, civil or criminal, shall be given reasonable facilities to consult a lawyer. Prisoner Before granting an interview to the lawyer, Heads of Institutions must satisfy themselves that the lawyer is actually representing the prisoner. The interview shall take place within sight but not The interview shall take place within sight shall not be given in a case where the interview is conducted by the lawyer’s clerk or other persons privilege shall not be given in a case where the authorised by the lawyer. interview is conducted by the lawyer’s clerk or other persons authorised by the lawyer.

159


In every case, the lawyer must request for an interview in writing at least three clear days before the interview, or one clear day in urgent cases. However, lawyers may request for visits in compelling or exceptional circumstances by giving advance notice (by telephone, telex,

In every case, the lawyer must request for an interview in writing at least three clear days before the interview, or one clear day in urgent cases. However, lawyers may request for visits in compelling or exceptional circumstances by giving advance notice

hours only. In his application, the lawyer shall state only. In his application, the lawyer shall state the following:– the following:–

2. if the interview is to be conducted in the

4. if the interview is to procure the prisoner as a defence witness, this fact shall be so stated. Heads of Institution shall in turn forward a copy defence witness, this fact shall be so stated. Heads of of the lawyer’s letter to the Attorney-General Institution shall in turn forward a copy of the lawyer’s for his information. letter to the Attorney-General for his information. be rejected in the following cases:–

rejected in the following cases:–

take instructions from the prisoner with regard instructions from the prisoner with regard to prison to prison offences or incidents in the prison offences or incidents in the prison involving the involving the prisoner. prisoner. Authorities

Documents to be Inspected by Prison Authorities

In every case where an interview is granted, the In every case where an interview is granted, the lawyer shall be asked to note the following:– lawyer shall be asked to note the following:– signature must be shown to the Prison Authorities before the prisoner is allowed to

the duration of or terminate the interview at any time in the interest of the prisoner.

must be shown to the Prison Authorities before the

duration of or terminate the interview at any time in the interest of the prisoner.

160


The photocopying of documents brought in by lawyers to their clients should be carried out discreetly. Heads of Institution should exercise discretion in ascertaining which documents to photocopy. Examples of such documents which merit photocopying are those concerning transfer and disposal of properties, shares and monies, the granting of powers of attorney etc. (especially if the prisoner involved is convicted under the Companies Act these documents should be photocopied only if there is suspicion of illegal purpose or fraud committed as spelt out in section 128 of the Evidence Act, Cap. 97.

The photocopying of documents brought in by lawyers to their clients should be carried out discreetly. Heads of Institution should exercise discretion in ascertaining which documents to photocopy. Examples of such documents which merit photocopying are those concerning transfer and disposal of properties, shares and monies, the granting of powers of attorney etc. (especially if the prisoner involved is convicted under the Companies Act, (Cap. 50, 2006 Rev. Ed. Sing documents should be photocopied only if there is suspicion of illegal purpose or fraud committed as spelt out in section 128 of the Evidence Act, (Cap. 97, 1997 Rev. Ed. Sing

A record of the interview shall be made in the A record of the interview shall be made in the Application Sheet of the prisoner’s Nominal Application Sheet of the prisoner’s Nominal Roll.” Roll. The approval to a lawyer’s request to interview a The approval to a lawyer’s request to interview prisoner shall be conveyed in the form [originally a prisoner shall be conveyed in the form attached at Appendix I] in this Order attached at Appendix I in this Order. Dated this 17th day of July 1987. DIRECTOR OF PRISONS, SINGAPORE.” 39

PDR 1989, Chapter 1 paragraph 52: Attestation of Documents incorporation of Companies--Attestation a. Requirement for signatories to personally In a complaint recently investigated by the appear before solicitor attesting to the Inquiry Committee, it was alleged that a solicitor signature of documents had attested the signature of certain documents without the signatory having personally appeared before the solicitor. of the Society are warned of the dangers of this practice. who are Commissioners for Oaths are particularly advised to heed the warning.

In a past complaint investigated by the Inquiry Committee, it was alleged that a solicitor had attested the signature of certain documents without the signatory having personally appeared before the solicitor. of the Society are warned of the dangers of this practice. who are Commissioners for Oaths are particularly advised to PDR 1989, Chapter 1 paragraph 53: heed the warning.

Attestation of Documents

False attestation of documents may amount to grossly improper conduct in the discharge of a solicitor’s professional duty and a breach of the Act. Solicitors should be mindful of the serious and obvious dangers of this practice.

b. false Attestation of Documents False attestation of documents may amount to grossly improper conduct in the discharge of a solicitor’s professional duty and a breach of the Act. Solicitors should be mindful of the serious and obvious dangers of this practice. [Afternote: Refer to 2011 Guide P97 Paragraph 2]

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PDR 1989, Chapter 1 paragraph 54: Allegations against another Solicitor in when acting professionally should Rationale of rule 71 PCR not cause an attack to be made against The purpose of rule 71 of the PCR is to ensure that a an opportunity to provide the Court a full and balanced picture of the allegation made against the solicitor opportunity to answer the intended allegations a party to the proceedings would not have had an opportunity to is forthcoming, it should be included in the party to the proceedings would be given the right to should have a full and balanced picture.

After the solicitor gives his reply, the alleging solicitor Note: The whole purpose of the Practice may then withdraw or modify his allegations. The Ruling is to provide the accused solicitor an reasons for including the solicitor’s answer in the opportunity to answer the accusation laid against him before the acc makes his accusations depending on the extent to which

the solicitor is to put the cart before the horse; b) this will lead to an endless process as the alleging

which will prompt the solicitor to write a further an answer is sought from the accused solicitor, reply; and this will have the effect of putting the cart before the horse. This may also lead to the (c) the alleging solicitor will not be deprived of the in reply. In that case, what recourse will the or modify his allegations after hearing the solicitor’s accused solicitor then have? A further written reply. answer by way of rebuttal? This complication 2) When rule 71 PCR does not apply the accused solicitor’s answer will also Rule 71 PCR does not apply: deprive the acc the opportunity not to [“Allegations Against Fellow Solicitors”, Singapore Law Gazette, January 2000] his accusations in the event he should decide to adopt either course. The “inconvenience” proceedings; been drawn by instructing solicitors overseas is a rare occurrence, and should not be a reason e) Where a client in a criminal suit makes allegations for the Council to modify its Practice Ruling. against the victim who is a solicitor; or f) When an allegation is made against a nonpractising solicitor.

162


(3) “Made against another advocate and solicitor” [“Allegations Against Fellow Solicitors”, Singapore Law Gazette, January 2000] of the law practice [Society’s Note: in particular, one which goes towards the processes, oversight or unless the allegation is personal to the staff. (4) “Opportunity to answer the intended allegations” [Ethics Committee Guidance: 8 March 2000] Under rule 71 PCR, it is the solicitor’s duty to provide allegations against him to enable him to fully respond eg whether it would be necessary to forward all the 71 PCR. to be sworn” [Ethics Quandary, Singapore Law Gazette, December 1999, page 12] Where a client says in evidence in the course of crossexamination that his previous solicitor did not carry out his instructions diligently, there was no duty on the client’s current solicitor to call on the previous solicitor to give him an opportunity to refute any allegation made, because the allegations were not [Afternote: Refer to 2011 Guide P89 Paragraph 1]

41

PDR 1989, Chapter 1 paragraph 55: Waiting time before Proceeding to tax Bills ex Parte taxation of Bills of the Bar are requested to extend their courtesy by waiting for a reasonable period of time for the solicitor on the other side to appear before proceeding for taxation. The practice of having Bills taxed Ex-Parte should be only resorted to under exceptional circumstances. It is good etiquette to attempt to the other solicitor before proceeding to go Ex-Parte.

Solicitors shall extend their courtesy by waiting for a reasonable period of time for the solicitor on the other side to appear before proceeding for taxation. The practice of having bills taxed ex-parte should only be resorted to under exceptional circumstances. It is good etiquette to attempt to the other solicitor before proceeding to go ex-parte. [Afternote: Refer to: a) Rules of Court Order 59, rule 22: Delivery of bills, etc; b) Refer to rule 47 of the PCR: Relationship with other advocates and solicitors; c) GN/1/2012 see below; and d) 2011 Guide P73 Paragraph 7]

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PDR 1989, Chapter 1 paragraph 58: Attendance notes etc. Attendance notes In a recent case investigated by the Inquiry Committee, it was noted that the Respondent In cases where more than one client is involved, it lawyer had failed to take attendance notes. would be advisable to send all correspondence to each of the clients separately. The Council would draw the attention of that they should comply with certain 2) Attendance Notes minimum standards of conduct such as the Solicitors are required to maintain contemporaneous keeping of proper records of attendance and notes of their dealings with clients, even for routine matters, as this would be an exercise in precaution cases where more than one client are involved, and prudence. The attendance notes will be of real it would be advisable to send all correspondence assistance in clarifying matters and corroborating to each of the clients separately. a solicitor’s testimony in the event of a dispute over what has transpired. Without these notes, the Court may draw an adverse inference against the lawyer’s testimony of events. The Court has emphasised the need for attendance notes especially when a solicitor is dealing with multiple clients. clients. [Afternote: Refer to 2011 Guide P22 Paragraph 1]

43

PDR 1989, Chapter 1 paragraph 59: Letters of Demand Debt Collecting Demands for Costs The Council had occasion to discuss a complaint which involved a Solicitor who on behalf of his client claimed costs in addition to the debt from a debtor in the letter of demand. The Council felt that the ruling on Page 79 of the Guide to Professional Conduct of Solicitors as reproduced below would be a useful guide to our on the point “4.1 Where a solicitor is instructed to collect a simple debt, the Council do not regard it as proper for the solicitor also to demand the costs of the letter which he sends on the debtor. The reason for this ruling is that at that stage, it cannot be said that the costs of the letter are properly recoverable in law. 4.2 However, this ruling does not apply to the case where, for example, following a motor accident, there is correspondence between the solicitor for the insured or a third party and the insurers or their solicitors, resulting in an agreement by the insurers or the third party in arriving at the settlement. (For extent of duty of solicitor who is instructed to collect a debt to make enquiries see Chapter 3, page 59, para.

Simple debt Where a solicitor is instructed to collect a simple debt, it is improper for the solicitor also to demand the costs of the letter which he sends to the debtor because at that stage it cannot be said that the costs of the letter are properly recoverable in law. Settlement for motor accidents The illustration in (1) above, however, does not apply to the case where, for example, following a motor accident, there is correspondence between the solicitor for the insured or a third party and the insurers or their solicitors, resulting in an agreement by the insurers or the third party in arriving at the settlement. Payment of arrears under mortgage debt Where a solicitor acting for a mortgagee is instructed to demand payment of arrears due under the mortgage he must not, at the same time, demand payment by the mortgagor of the costs of that letter unless he explains that such costs can be added to the amount of the mortgage debt.

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4.3 Where a solicitor acting for a mortgagee is instructed to demand payment of the arrears due under the mortgage he must not, at the same time, demand payment by the mortgagor of the costs of that letter unless he explains that such costs can be added to the amount of the mortgage debt. 4.4 Where a creditor wrongly made a demand for the payment of a debt alleged to be due to him from a third party, who then consulted a solicitor, the Council decided there was no professional objection to the solicitor for the third party writing to say that he would be prepared to advise his client to accept an apology for the libel provided his charges were paid.

Settlement for libel Where a creditor wrongly made a demand for the payment of a debt alleged to be due to him from a third party, who then consulted a solicitor, there is no professional objection to the solicitor for the third party writing to say that he would be prepared to advise his client to accept an apology for the libel provided his charges were paid. Agreement for payment by instalments and costs There is no professional objection to a solicitor making arrangements on behalf of a creditor for the payment of a simple contract debt or a judgment debt by instalments subject to the stipulation that the debtor shall pay the creditor’s solicitor’s costs.

It is also not improper for a solicitor acting for a creditor to agree to accept payment by instalments 4.5 There is no professional objection to a in liquidation of a debt only if the debtor’s solicitors solicitor making arrangements on behalf of a guaranteed the payment. creditor for the payment of a simple contract debt or a judgment debt by instalments subject [Afternote: Refer to 2011 Guide P112-113 Paragraph to the stipulation that the debtor shall pay the 1 to 5] creditor’s solicitor’s costs. 4.6 It is also not improper for a solicitor acting for a creditor to agree to accept payment by instalments in liquidation of a debt only if the debtor’s solicitors guaranteed the payment.” 44

RuL/2/1991, 1991 Circular no. 7, July Challenging another 1991: Rulings of the Law Society Society’s Rulings

Solicitor

on

Law

It is not proper conduct for a solicitor to challenge another solicitor who acts in accordance with a ruling made by the Law Society simply because the challenging solicitor does not agree with that ruling. The appropriate course would be for the challenging solicitor to take up the disputed ruling with the Society if he can.

It is not proper conduct for a solicitor to challenge another solicitor who acts in accordance with a ruling made by the Law Society simply because the challenging solicitor does not agree with that ruling. The appropriate course would be for the challenging solicitor to take up the disputed ruling with the Society if he can.

A solicitor who seeks a ruling from the Law Society can always write to the Law Society in the proper manner for a ruling without the consent of the other solicitor involved.

A solicitor who seeks a ruling from the Law Society can always write to the Law Society in the proper manner for a ruling without the consent of the other solicitor involved.

The refusal of the other solicitor to agree to refer a matter to the Law Society for a ruling is in itself not improper conduct. However, the solicitor who refuses to agree to request the ruling is only preventing himself from putting forward his contentions to the Law Society and has to take the consequences of his actions.

The refusal of the other solicitor to agree to refer a matter to the Law Society for a ruling is in itself not improper conduct. However, the solicitor who refuses to agree to request the ruling is only preventing himself from putting forward his contentions to the Law Society and has to take the consequences of his actions. [Afternote: Refer to 2011 Guide P73]

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RuL/2/1994: Solicitors

Relations

With

other A solicitor must at all times maintain his or her

personal integrity and observe the requirements of good manners and courtesy towards other of the profession or their staff, no matter how bitter the feelings between clients. A solicitor must not behave in a manner which is acrimonious or offensive or otherwise in consistent with his or her position as a solicitor.

A solicitor must at all times maintain his or her personal integrity and observe the requirements of good manners and courtesy towards other of the profession or their staff, no matter how bitter the feelings between clients. A solicitor must not behave in a manner which is acrimonious or offensive or otherwise in Likewise, a solicitor must not write offensive letters consistent with his or her position as a solicitor. to of the profession, whatever the degree of bad feeling existing between the respective clients. Likewise, a solicitor must not write offensive letters to of the profession, whatever the degree of bad feeling existing between the respective clients. (The Guide to the Professional Conduct of Solicitors (Sixth 46

PD/4/2007: Limitation of Civil Liability

1. This Practice Direction takes effect from 5 October 2007.

1. This Practice Direction takes effect from 5 2. Although it is not acceptable for solicitors to attempt October 2007. to exclude by contract all liability to their clients, the 2. Although it is not acceptable for solicitors Council has no objection, as a matter of conduct, to to attempt to exclude by contract all liability to solicitors seeking to limit their liability provided that their clients, the Council has no objection, as a such limitation is not below the minimum level of matter of conduct, to solicitors seeking to limit cover required by the Legal Profession (Professional Cap. 161, R 11, 2002 their liability provided that such limitation is not Rev. Ed. Sing below the minimum level of cover required by the Legal Profession (Professional Indemnity 3. The cover currently required by the Legal Insurance) Rules Rules is set out in the Schedule therein, reproduced below 3. The cover currently required by the Legal for easy reference: and S$2 million in the case of law corporations and limited liability law partnerships.

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4. This principle is subject to the position in AMOUNT OF INSURANCE COVER law. The following points should be noted: 1. For the purposes of rule 3(1)(a), if the advocate and solicitor is or will be practising in — professional obligations cannot be limited. be overridden. In particular the courts will not enforce in the solicitor’s favour an unfair agreement with his or her client. Act , a provision in any agreement as to costs for contentious business that the solicitor shall not be liable for negligence, or that he or she shall be relieved from any responsibility to which he or she would otherwise be subject as a solicitor, is void. Act

Unfair Contract

term which seeks to exclude liability is of requirement of reasonableness set out in section 11, namely that the contract term must be a fair and reasonable one having regard to the circumstances which were or ought reasonably to have been known to or in the contemplation of the parties when the contract was made. Act

Unfair Contract

sum of money, the question of whether the requirement of reasonableness has been which the person seeking to impose it could expect to be available to him or her for the purpose of meeting the liability should it arise, and how far it was open to him or her to cover himself by insurance. law, such matters may need to be considered according to the law applicable. 5 Any limitation must be brought clearly to the attention of the client and be understood and accepted by him or her. 6 The client’s acceptance of the limitation

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For each and $1 million every claim in respect of civil liability incurred by that advocate and solicitor b) a law For each and corporation every claim in respect of civil liability incurred by that advocate and solicitor — a) if the law $1 million corporation has only one director b) in any other $2 million case c) a limited For each and $2 million liability law every claim in partnership respect of civil liability incurred by that advocate and solicitor


2. For the purposes of rule 3(2) For each and every claim in respect of civil liability incurred by the law corporation — (a) if the law $1 million corporation has only one director (b) in any other case $2 million

For each and every $2 million. claim in respect of civil liability incurred by the limited liability law partnership S$1 million in the case of law and S$2 million in the case of law and limited liability law partnerships. 4. This principle is subject to the position in law. The following points should be noted: professional obligations cannot be limited. overridden. In particular the courts will not enforce in the solicitor’s favour an unfair agreement with his or her client.

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Act, a provision in any agreement as to costs for contentious business that the solicitor shall not be liable for negligence, or that he or she shall be relieved from any responsibility to which he or she would otherwise be subject as a solicitor, is void.

term which seeks to exclude liability is of no effect reasonableness set out in section 11, namely that the contract term must be a fair and reasonable one having regard to the circumstances which were or ought reasonably to have been known to or in the contemplation of the parties when the contract was made. (Cap. 396, 1994 Rev. Ed. Sing a contractual term seeks to restrict liability to a must take into the resources which the person seeking to impose it could expect to be available to him or her for the purpose of meeting the liability should it arise, and how far it was open to him or her to cover himself by insurance. such matters may need to be considered according to the law applicable. 5 Any limitation must be brought clearly to the attention of the client and be understood and accepted by him or her. 6 The client’s acceptance of the limitation should be

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2. For the purposes of rule 3(2) For each and every claim in respect of civil liability incurred by the law corporation — (a) if the law corporation has $1 million only one director (b) in any other case

$2 million

For each and every $2 million. claim in respect of civil liability incurred by the limited liability law partnership S$1 million in the case of law and S$2 million in the case of law and limited liability law partnerships. 4. This principle is subject to the position in law. The following points should be noted: professional obligations cannot be limited. overridden. In particular the courts will not enforce in the solicitor’s favour an unfair agreement with his or her client.

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Act, a provision in any agreement as to costs for contentious business that the solicitor shall not be liable for negligence, or that he or she shall be relieved from any responsibility to which he or she would otherwise be subject as a solicitor, is void.

term which seeks to exclude liability is of no effect reasonableness set out in section 11, namely that the contract term must be a fair and reasonable one having regard to the circumstances which were or ought reasonably to have been known to or in the contemplation of the parties when the contract was made. (Cap. 396, 1994 Rev. Ed. Sing a contractual term seeks to restrict liability to a must take into the resources which the person seeking to impose it could expect to be available to him or her for the purpose of meeting the liability should it arise, and how far it was open to him or her to cover himself by insurance. such matters may need to be considered according to the law applicable. 5 Any limitation must be brought clearly to the attention of the client and be understood and accepted by him or her. 6 The client’s acceptance of the limitation should be

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PD 3/2004: fee Arrangements with PD 3/2004: fee Arrangements with Clients Clients a) Propriety of an Agreement to Accept a) Propriety of an Agreement to Accept Payment of Solicitor and Client Costs only Payment of Solicitor and Client Costs in the event of Success and Recovery by the only in the event of Success and Client of his fixed Party & Party Costs in the Recovery by the Client of his fixed Party Case of a Judgment in Default of Appearance & Party Costs in the Case of a Judgment in Default of Appearance 1. Council considered and deliberated on the ethical

propriety of a member agreeing with clients to only 1. Council considered and deliberated on the ethical propriety of a member agreeing with for judgments in default of appearance and payable upon the clients’ recovery of such costs. as Party & Party costs for judgments in default of appearance and payable upon the clients’ 2. Council also deliberated if it was ethical for a recovery of such costs. costs if clients do not recover legal costs from the 2. Council also deliberated if it was ethical for Judgment Debtor. Party costs if clients do not recover legal costs 3. Council has ruled that entering into such fee sharing from the Judgment Debtor. arrangement will mean that a lawyer’s Solicitor’s & Client costs is effectively dependent on the recovery 3. Council has ruled that entering into such fee of Party & Party costs by a client and such conduct sharing arrangement will mean that a lawyer’s can amount to a breach of section 107 of the Act. Solicitor’s & Client costs is effectively [Refer to 2011 Guide P130] dependent on the recovery of Party & Party costs by a client and such conduct can amount PD4/2004: b) fee Arrangements with Clients for Judgments in Default of Appearance to a breach of section 107 of the Act. [Refer to 2011 Guide P130]

This Practice Direction takes effect on 6 December 2004.

PD4/2004: b) fee Arrangements with Clients for Judgments in Default of guidance to Appearance This Practice Direction takes effect on 6 December 2004.

guidance to

member agrees with his client to only charge solicitor appearance so long as payment of S & C costs are not contingent upon the client’s recovery of his Party &

PD if a member agrees with his client to only with his client to charge S and C Costs at an amount for judgments in default of appearance so long as payment of S & C costs are not contingent in default of appearance. upon the client’s recovery of his Party & Party

agrees with his client to charge S and C Costs

equally to Party & Party costs for judgments in default of Defence.

costs for judgments in default of appearance.

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[Refer to 2011 Guide P130-131] applies equally to Party & Party costs for PD 2/2012: c) ethical Propriety of fee judgments in default of Defence.

Arrangements with Clients where Payment of Solicitor and Client Costs & Disbursements is Contingent on Recovery of Party and Party PD 2/2012: c) ethical Propriety of fee Costs & Disbursements Arrangements with Clients where Payment of Solicitor and Client Costs & Disbursements 1. This Practice Direction takes effect on 15 May is Contingent on Recovery of Party and Party 2012. Costs & Disbursements [Refer to 2011 Guide P130-131]

2. It has come to the attention of the Council that a 1. This Practice Direction takes effect on 15 client of a member has set the following guideline on May 2012. the billing of solicitor and client costs: 2. It has come to the attention of the Council that a client of a member has set the following guideline on the billing of solicitor and client costs:

“solicitor and client costs & disbursements would be limited to whatever party & party costs & disbursements are recovered from the other party” and “in the event that no costs are recovered from the other party, solicitor & client costs will be waived & “solicitor and client costs & disbursements only disbursements billed.” would be limited to whatever party & party costs & disbursements are recovered from the 3. Council has taken the position that such a fee other party” and “in the event that no costs arrangement would be improper for the following are recovered from the other party, solicitor & reasons: client costs will be waived & only disbursements billed.” of solicitor-and-client costs that is contingent on the 3. Council has taken the position that such amount of party-and-party costs recovered by a client a fee arrangement would be improper for the would render a solicitor in breach of section 107 of following reasons: the Act and Rule 37 of the PCR because the solicitor would have an interest in the subject matter of the payment of solicitor-and-client costs that is and contingent on the amount of party-and-party costs recovered by a client would render a solicitor in breach of section 107 of the Act to the guideline referred to in paragraph 2 herein as and Rule 37 of the PCR because the solicitor improper under Council’s Practice Directions 3 of would have an interest in the subject matter of the litigation or be purchasing an interest in the for a client in obtaining a judgment in default of appearance or defence. similar to the guideline referred to in paragraph 2 herein as improper under Council’s Practice Directions 3 of 2004 and 4 of 2004 (both dated 6 of a solicitor acting for a client in obtaining a judgment in default of appearance or defence.

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4. Council continues to be of the view that in any contentious matter, it is improper for solicitors to have an interest in the subject matter of the litigation or to purchase an interest of a client. Therefore, such a fee arrangement would result in any solicitor acting for the client being in breach of section 107 of the Act and Rule 37 of the PCR and liable for professional misconduct

4. Council continues to be of the view that in any contentious matter, it is improper for solicitors to have an interest in the subject matter of the litigation or to purchase an interest of a client. Therefore, such a fee arrangement would result in any solicitor acting for the client being in breach of section 107 of the Act and Rule 37 of the PCR and liable for professional

like any other person, shall be subject to the law of any other person, shall be subject to the law of maintenance and champerty. maintenance and champerty. [Society’s Note: Propriety of a Solicitor representing an impecunious client where fees or disbursements are likely to be recovered if the claim is successful 4. The above paragraphs should be read in light of the decision in Law Society of Singapore v Kurubalan be permissable and even honorable for a Solicitor to act for an impecunious client in the knowledge that he would likely be able to recover his appropropriate fees or disbursement if the client was successful in the claim and could pay him out of those proceeds or if there was a costs order obtained against the other side. such an arrangement would not be caught by section 107 of the Act or Rule 37 of the PCR because it would not amount to acquiring an interest in the fruits of litigation. In such a case, the Solicitor is putting aside his usual desire to be assured that he will be paid his fees in the interests of ensuring that the client is not no wrong in a Solicitor taking on a matter even if, as a practical matter, he knows that the client is unlikely to be able to afford to pay his bill unless the claim is successful or a costs order is obtained. practice directions should not be read to apply to the impecunious litigant who would not otherwise be able to afford legal representation, as there is an overriding the rules that proscribe champertous agreements are statutorily enacted and lawyers who enter into champertous agreements can expect to face at least a substantial period of suspension. (refer to Law Society of Singapore v Kurubalan s/o and [89]])

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PD 2/2009: guidelines for inquiries to enquiries to Relevant Committee ethics Committee a) enquiries to the relevant Sub-Committee 1. This Practice Direction takes effect on 7 July [Formerly PDR 1989, Chapter 7, para. 36] 2009.

It has come to the attention of the Council that have written letters of enquiries or for guidance from the Law Society or its Committee without disclosing that there are other relevant parties concerned with the question thereby obtaining an 3. Requests by to the Law Society for answer which did not take into the opposing advice or guidance from its Ethics Committee views on the question. should comply with the following guidelines. The Ethics Committee reserves the right not to The Council would like to remind who wish consider or to give any guidance on requests to enquire or require guidance from the Law Society which do not follow the guidelines set out or its Committees to extend a copy of the letter to any other party who may be involved in the issue or below. problem raised to enable the Society to consider any opposing views on the matter. in writing to the Law Society Secretariat. Requests should not be submitted to the Chair b) hypothetical Reference of the Ethics Committee or to of the [Formerly PDR 1989, Chapter 7, para. 35] Committee individually. 2. Part of the Ethics Committee’s function is to be a resource which the Law Society makes available to all to provide to them advice and guidance on ethical issues.

should be informed that the Council will respect of ethical matters which are not clearly not entertain any reference or request for a ruling dealt with by legislation (including subsidiary in hypothetical cases or where the identities of the parties involved are not revealed. common law or ethical matters in respect of which there is some genuine ambiguity or no A member may, if there is a need to do so, request Council not to disclose the identities of the parties other available guidance. to the Committee on Rules & Etiquette. In such an event, the Council reserves the right to disclose such hypothetical – it must deal with a real ethical names as it deems necessary to enable the Committee issue which has arisen or which it is reasonably to properly determine the reference. expected will arise in the inquiring member’s c) PD 2/2009: guidelines for inquiries to own professional practice.

ethics Committee

inquiry and not a disguised complaint against another member. In particular, requests for guidance should not be used to malign, harass or pressurise opposing parties or counsel or to gain tactical advantage.

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1. This Practice Direction takes effect on 7 July 2009. 2. Part of the Ethics Committee’s function is to be a resource which the Law Society makes available to all to provide to them advice and guidance on ethical issues.


3. Requests by to the Law Society for advice or guidance from its Ethics Committee should comply with the following guidelines. The Ethics Committee reserves the right not to consider or to give any guidance on facts, bearing in mind the need to observe any requests which do not follow the guidelines set out below. the Ethics Committee’s consideration:

such as legislation (including subsidiary

writing to the Law Society Secretariat. Requests should not be submitted to the Chair of the Ethics Committee or to of the Committee individually.

articles and cases, whether from Singapore or ethical matters which are not clearly dealt with by directions in force or common law or ethical matters in respect of which there is some genuine ambiguity or no which the inquirer is asking the Committee to other available guidance. express its views. another member or if the guidance sought has the potential to affect another member, the inquiring member should inform the other member of the intention to seek guidance from the Law Society and the letter to the Law Society seeking guidance should be copied to the other member.

it must deal with a real ethical issue which has arisen or which it is reasonably expected will arise in the inquiring member’s own professional practice. and not a disguised complaint against another member. In particular, requests for guidance should not be used to malign, harass or pressurise opposing parties or counsel or to gain tactical advantage.

If the subject-matter of the inquiry has been the subject of correspondence between the inquiring member and the other member, the matters which should properly be dealt with either by the inquiring member should also provide copies Court or between the parties. of the correspondence to the Law Society. Committee’s consideration: inquiring member before issuing any guidance. Further, to the extent that third parties (including

bearing in mind the need to observe any obligation of

matter. guidance, the Committee reserves the right or information from those third parties. If any forthcoming or if the inquirer does not consent to the Committee seeking the further information Ethics Committee reserves the right not to inquiring member. The Ethics Committee may publish anonymised versions of the inquiry and the guidance where the subject-matter of the request is one of general application or interest.

directions, text books, articles and cases, whether from

inquirer is asking the Committee to express its views. member or if the guidance sought has the potential to affect another member, the inquiring member should inform the other member of the intention to seek guidance from the Law Society and the letter to the Law Society seeking guidance should be copied to the other member. If the subject-matter of the inquiry has been the subject of correspondence between the inquiring member and the other member, the inquiring member should also provide copies of the correspondence to the Law Society. 176


not rulings. Neither the inquiring member nor any third party who may be affected by the subject-matter of the inquiry is bound by the guidance given by the Ethics Committee. Only the Courts can provide rulings on the scope and extent of ’ professional obligations and bind or third parties with those rulings. Having said that, the Courts do give some weight to Ethics Committee’s guidance representing, as it does, the professional body’s view. The weight which will be given will depend to a large extent on the completeness and accuracy with which all relevant material has been placed before the Committee together with the request for guidance.

member before issuing any guidance. Further, to the may be involved in the subject-matter. the Committee reserves the right with the inquirer’s those third parties. If any additional information or not consent to the Committee seeking the further parties, the Ethics Committee reserves the right not

The Ethics Committee may publish anonymised versions of the inquiry and the guidance where Committee’s starting point is that all inquiries the subject-matter of the request is one of general application or interest. of completed conduct (as opposed to future misconduct or criminal wrongdoing, the Ethics rulings. Neither the inquiring member nor any third Committee may be under a duty to report that party who may be affected by the subject-matter of the misconduct through the relevant channels. inquiry is bound by the guidance given by the Ethics Committee. Only the Courts can provide rulings 4. The Committee’s advice or guidance is well- on the scope and extent of ’ professional researched and generally entails substantial obligations and bind or third parties consideration and discussion by Committee with those rulings. Having said that, the Courts do . The Committee aims to respond with give some weight to Ethics Committee’s guidance a formal advice or guidance within three to six representing, as it does, the professional body’s view. weeks from the date that the Committee accepts The weight which will be given will depend to a large a request for guidance. Where an expedited extent on the completeness and accuracy with which response is necessary, the inquirer should make all relevant material has been placed before the that clear in the inquiry. The Committee will Committee together with the request for guidance. then endeavour to furnish its ultimate advice or guidance as a matter of urgency and follow up with its reasons in a formal advice or guidance thereafter. the inquiry is in respect of completed conduct (as 5. The Ethics Committee also welcomes professional misconduct or criminal wrongdoing, the input from about practical issues or Ethics Committee may be under a duty to report that suggestions for reform of the rules of ethics. misconduct through the relevant channels.

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4. The Committee’s advice or guidance is well-researched and generally entails substantial consideration and discussion by Committee . The Committee aims to respond with a formal advice or guidance within three to six weeks from the date that the Committee accepts a request for guidance. Where an expedited response is necessary, the inquirer should make that clear in the inquiry. The Committee will then endeavour to furnish its ultimate advice or guidance as a matter of urgency and follow up with its reasons in a formal advice or guidance thereafter. 5. The Ethics Committee also welcomes input from about practical issues or suggestions for reform of the rules of ethics. [Refer to 2011 Guide P6-7]

d) PD 2/2013 Requests to the Conveyancing Practice Committee for guidance, Direction(s) or Rulings 1. This Practice Direction takes effect on 7 May 2013. Functions of the Committee 2. Amongst other functions, the Conveyancing Practice assisting in settling disputes in respect of conveyancing transactions so that they need not be settled in Court. In addition where customary conveyancing practice is unclear, the Committee may be asked to provide guidance. However where issues are clearly legal disputes of a magnitude that ought to be brought to the Court for a determination, the Committee will not interfere. Further elaboration of the Committee’s tasks and assistance are given below. Requesting Guidance seeking guidance from seeking a ruling or direction. Seeking guidance by a member may be made unilaterally. No ‘other party’ to the transaction should be named. Guidance given by the Committee is informative in nature and is not binding on any member. Guidance may not be used to indicate to ‘another party’ how ‘that party’ should act or conduct itself. The Committee discourages from seeking guidance on practices that are well established or ought to be known or practised in the ordinary course of a normal conveyancing transaction.

178

Annex B : Practice Directions and Rulings no. Practice Directions Recommended 48 area of dispute in the relevant Conveyancing transaction and for the Committee to either provide the Direction or give a Ruling. Requests by should comply with the following protocols, otherwise the Committee may not consider the request: a. the facts of case must be agreed upon by all requesting

b. the presented issues should only be in respect of conveyancing practice matters that do not require interpretation of any relevant legislation (including referred to, that common law must hinge on well known decided principles that are already enunciated by the Court. If the principle of law is being question or queried, the Committee may decline the request and recommend to the c. the facts of the case must not be hypothetical – as stated in

d. to summarise, requests by for a Direction or Ruling should set out for the Committee’s consideration: i. a full and accurate of all material facts, bearing in mind the need to observe any obligation of ii. a summary of the conveyancing issues involved and iii. all relevant case authorities or referred to legislation bearing on the presented issues should accompany the e. the requesting must also adopt the following in the protocol: i. all submissions and copies of documents, case authorities, legislation etc. must be copied to the other ii. requesting must agree to abide and be bound by the Direction or Ruling of the Committee without iii. when asked to provide further documents by the Committee or to answer questions raised, the

179


Effect of a Decision by the Committee 5. Although the Committee does not monitor the actions or conduct of after the Direction or Ruling is given, the Committee expects that take the necessary Ruling given.

anonymised versions of the case referred to by and the decision of the Committee where the subject-matter of the request is one of general application or interest to who practise conveyancing. 7. Whilst the Law Society and the Committee recognise that the recitation of facts and circumstances by requesting a duty to report any professional misconduct or criminal wrongdoings or breach of current PCR or code. Timelines and Conclusion 8. The Committee generally will provide its decision to any request within three to six weeks from date of the request. This is after all the necessary documents are received by the Committee. should not expect instantaneous responses as the Committee are also working lawyers. No query will be entertained over the telephone. must not expect the staff of the Law Society or the Director-in-charge of the particular portfolio to answer such queries. Expedited response will only be given as an exceptional case where the matter at hand is of utmost urgency. 49

PD 6/2009: Code of Practice in non- Warrant to Act, Letter of engagement And injury and Personal injury Motor Referrals from third Parties Accident Cases (1) Warrant to Act to be Signed by each Crew 1. This Practice Direction takes effect on 1 Member in Maritime Wage Claims December 2009.


2. This Practice Direction sets out a code of When acting for clients such as ship’s crew in wage claims, practice for solicitors concerning the making a solicitor shall obtain a Warrant to Act signed by each crew or commencement of any claim or action member before or as soon as practicable after the issue of an iralty Writ in Rem. personal injury motor accident cases, and in respect of the negotiation, compromise, (2) inserting Reservation of Rights in Warrant to settlement or conduct of that claim or action. Act [Formerly PDR 1989, Chapter 1, para. 8(b)] This Practice Direction: 2.1 consolidates and highlights certain ethical obligations on warrants to act and providing may well be averted by inserting an appropriate reservation welfare assistance to clients which are also of right in his client’s Warrant to Act. This reservation could generally applicable to all solicitors in contentious be to the effect that the solicitor may at any time discharge of the PCR, 2.2 establishes the ethical parameters of agreements take reasonable care to avoid foreseeable harm to the client. entered into by solicitors with third parties for referral of work in non-injury and personal injury 180


2.3 complements the existing legislative regime Without a suitable reservation of right, a solicitor who under the Legal Profession Act, the Legal obtains his discharge may well expose himself to a claim for damages in the event his withdrawal leads to the dismissal of his client’s claim or the recovery of Judgment against his client when there is a valid defence.

(A) WARRAntS to ACt

ing identity of the client before acting [Refer to 2011 Guide P12 Paragraph 3. Before accepting instructions to act in a matter, a solicitor or a law practice shall take (3) Request for Written Warrants to Act reasonable measures to ascertain the identity [Formerly RUL/1/1992] of a client or a principal client as soon as A law practice shall as a general rule accept another PCR. The solicitor or law practice must comply authorised to act for a particular client on the face the identity of the client or the principal client value of the representation made, unless there are set out in the Council’s Practice Direction 1 of good reasons for suspecting that the representation 2008 on the Prevention of Money Laundering has been falsely made. and Funding of Terrorist Activities. effect of a legal notice can be negated by a request for Accepting instructions from the client to act 4. After a solicitor or a law practice has the principal client, the solicitor or law practice may accept instructions from the client or an agent on behalf of a principal client to act in the matter. In the latter case, the solicitor must ensure that the agent has the required authority to give instructions on behalf of the principal client and, in the absence of evidence of such authority, the solicitor must, within a reasonable

[Refer to 2011 Guide P12 Paragraph 3]

principal client: Rule 23 PCR.

4) Code of Practice in non-injury and Personal injury Motor Accident Cases

(Refer to: a) Order 64, rule 7 of the Rules of Court; and b) Tunn Hui Mannequin Industries v Tenet Insurance Co Ltd and others [2005] SGHC 69.)

5. It is in the interests of both the solicitor and the client that the solicitor or the law practice [Formerly PD/6/2009] should obtain written instructions of the client or his agent to act in the matter. If a solicitor or a 1. This Practice Direction takes effect on 1 December law practice has received oral instructions from 2009. the client or his agent to act in the matter, the 2. This Practice Direction sets out a code of practice for instructions subsequently in a written Warrant solicitors concerning the making or commencement The absence of such a Warrant to Act is, if the in non-injury and personal injury motor accident solicitor’s authority to act is disputed, prima cases, and in respect of the negotiation, compromise, facie evidence that he has not been authorised settlement or conduct of that claim or action. This Practice Direction: the Rules of Court.

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6. In the context of a third party referring a client 2.1 consolidates and highlights certain ethical obligations to a solicitor or a law practice, the solicitor or on warrants to act and providing welfare assistance to law practice, as the case may be, must comply clients which are also generally applicable to all solicitors In particular, the solicitor or law practice must “communicate directly with the client to 2.2 establishes the ethical parameters of agreements entered into by solicitors with third parties for referral of providing advice and at all appropriate stages work in non-injury and personal injury motor accident The solicitor or law practice must not accept instructions from the third party to act in the 2.3 complements the existing legislative regime under matter. the Act, the PCR and the PR. Execution of the Warrant to Act by the client 7. It is in the interests of the solicitor to explain properly the nature, contents and scope of the Warrant to Act directly to his client, and not to delegate this duty to a staff of his law practice. Failure to provide the client with a proper explanation may result in disputes over what the client knew or was told when the Warrant to Act was executed, which may attract allegations of misconduct. Further, the of any contentious fee agreement between the solicitor and the client could be deemed unfair or unreasonable and such an agreement may be declared void: section

A) WARRAntS to ACt

ing identity of the client before acting 3. Before accepting instructions to act in a matter, a solicitor or a law practice shall take reasonable measures to ascertain the identity of a client or a principal client PCR. The solicitor or law practice must comply with the client or the principal client set out in the Council’s Practice Direction 1 of 2008 on the Prevention of Money Laundering and Funding of Terrorist Activities. Accepting instructions from the client to act

the identity of the client or the principal client, the solicitor or law practice may accept instructions from the client or an agent on behalf of a principal client to act in the matter. In the latter case, the solicitor must ensure that the agent has the required authority to give instructions 8. In the context of a third party referring a client on behalf of the principal client and, in the absence of to a solicitor or a law practice, the solicitor or evidence of such authority, the solicitor must, within a law practice, as the case may be, is prohibited from leaving blank forms of Warrants to Act the principal client: Rule 23 PCR. with the third party or allowing the third party to secure a client’s signature to a Warrant to 5. It is in the interests of both the solicitor and the client Act The arrangements for the explanation and that the solicitor or the law practice should obtain execution of a Warrant to Act must be made written instructions of the client or his agent to act in directly by the solicitor or the law practice with the matter. If a solicitor or a law practice has received oral instructions from the client or his agent to act in the stated in paragraph 7 above, it is in the interests of the solicitor to ensure that the Warrant to instructions subsequently in a written Warrant to Act: Act is executed by the client in the solicitor’s of such a Warrant to Act is, if the solicitor’s authority to presence. act is disputed, prima facie evidence that he has not been prudence, it is in the interests of the solicitor to maintain comprehensive and contemporaneous attendance notes of the solicitor’s explanation to the client when the Warrant to Act is executed.

the Rules of Court.

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Disclosure of the Warrant to Act to a third party 9. A solicitor cannot refuse to disclose his Warrant to Act to a third party where his authority to act is disputed. Where an action has been commenced in Court, no privilege attaches ipso facto to a Warrant to Act and a solicitor who receives a request to disclose his Warrant to Act should do so as a matter of course: Tung Hui Mannequin Industries v Tenet Insurance Co Ltd and Others [2005] 3 SLR 184

6. In the context of a third party referring a client to a solicitor or a law practice, the solicitor or law practice, as the case may be, must comply with all the requirements practice must “communicate directly with the client to advice and at all appropriate stages of the transaction”: not accept instructions from the third party to act in the matter.

execution of the Warrant to Act by the client the Council is of the view that such requests should not be made unnecessarily. A law practice should as a general rule accept another law practice’s written representation that the latter is authorised to act for a particular client on the face value of the representation made, unless there are good reasons for suspecting that the representation has been falsely made: see Council’s Ruling 1 of 1992 on Request for Written Warrants to Act.

7. It is in the interests of the solicitor to explain properly the nature, contents and scope of the Warrant to Act directly to his client, and not to delegate this duty to a staff of his law practice. Failure to provide the client with a proper explanation may result in disputes over what the client knew or was told when the Warrant to Act was executed, which may attract allegations of misconduct. Further, the of any contentious fee agreement between the solicitor and the client could be deemed unfair or unreasonable and such an Act. As a matter of precaution and prudence, it is in the

(B) AgReeMentS With thiRD interests of the solicitor to maintain comprehensive and PARtieS foR RefeRRAL of WoRk contemporaneous attendance notes of the solicitor’s 11. for referral of a client by a third party explanation to the client when the Warrant to Act is

to a solicitor or a law practice, the solicitor or executed. law practice, as the case may be, must comply 8. In the context of a third party referring a client to a solicitor or a law practice, the solicitor or law practice, as 12. In addition, the Council is of the view the case may be, is prohibited from leaving blank forms that the ethical requirements stipulated in of Warrants to Act with the third party or allowing the Rule 11B PCR for agreements for referrals of third party to secure a client’s signature to a Warrant to conveyancing services should similarly apply Act The arrangements for the explanation and execution to agreements entered into by a solicitor or a of a Warrant to Act must be made directly by the solicitor law practice with third parties for referral of non-injury motor accident or personal injury For the reasons stated in paragraph 7 above, it is in the motor accident work. For such agreements, interests of the solicitor to ensure that the Warrant to Act the solicitor or law practice, as the case may is executed by the client in the solicitor’s presence. be, shall ensure that the agreement is made in Disclosure of the Warrant to Act to a third party writing and contains the following : 9. A solicitor cannot refuse to disclose his Warrant to 12.1 The referror undertakes in such an Act to a third party where his authority to act is disputed. Where an action has been commenced in Court, no privilege attaches ipso facto to a Warrant to Act and a solicitor who receives a request to disclose his Warrant 12.2 The solicitor or law practice shall not: to Act should do so as a matter of course: Tung Hui Mannequin Industries v Tenet Insurance Co Ltd and

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commission, referral fee or any other form of Council is of the view that such requests should not be made unnecessarily. A law practice should as a general rule accept another law practice’s written representation that the latter is authorised to act for a particular client on commission, referral fee or any other form of the face value of the representation made, unless there consideration. are good reasons for suspecting that the representation has been falsely made: see Council’s Ruling 1 of 1992 12.3 The solicitor or law practice must be on Request for Written Warrants to Act. entitled to terminate the agreement immediately if there is reason to believe that the referror is 8. (B) AgReeMentS With thiRD PARtieS

foR RefeRRAL of WoRk

11. For referral of a client by a third party to a solicitor 12.4 Any publicity of the referror (whether or a law practice, the solicitor or law practice, as the case may be, must comply with all the requirements in Rule to any service that may be provided by the solicitor or law practice must not suggest any 12. In addition, the Council is of the view that the ethical of the following: requirements stipulated in Rule 11B PCR for agreements for referrals of conveyancing services should similarly apply to agreements entered into by a solicitor or a law practice with third parties for referral of non-injury be made according to whether or not the client motor accident or personal injury motor accident work. For such agreements, the solicitor or law practice, as the case may be, shall ensure that the agreement is made in or writing and contains the following : offered by the referror or any party related to the 12.1 The referror undertakes in such an agreement to referror are conditional on the client instructing 12.5 The referror must not do anything to impair the right of the client not to appoint the

12.2 The solicitor or law practice shall not:

the right of the client to appoint the solicitor or referral fee or any other form of consideration. law practice of his choice. 13. The solicitor or law practice must terminate 12.3 The solicitor or law practice must be entitled to the agreement immediately if the referror is in terminate the agreement immediately if there is reason breach of any term referred to in paragraph 12 to believe that the referror is in breach of any of the above or if there is reason to believe that the solicitor or law practice is in breach of such term.

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12.4 Any publicity of the referror (whether written or complicit in a staged accident or otherwise may be provided by the solicitor or law practice must not committed any fraud, dishonesty, crime or suggest any of the following: illegal conduct, the solicitor or law practice has a duty to advise the client of the same and the legal consequences of misleading the Court. The solicitor or law practice should also advise the client to require the referror to make the according to whether or not the client instructs the action. If the client refuses to accept the advice or if the referror refuses to make the appropriate solicitor or law practice, as the case may be, must terminate the agreement immediately and cease to act in the matter. When advising the client, the solicitor must not knowingly assist in or encourage any fraud, dishonesty, crime or illegal conduct. The solicitor must also, at all times, comply with his ethical obligations not to knowingly mislead or deceive the Court: see Rules 56 to 59 PCR.

by the referror or any party related to the referror are conditional on the client instructing the solicitor or law 12.5 The referror must not do anything to impair the right of the client not to appoint the solicitor or law practice or solicitor or law practice of his choice.

13. The solicitor or law practice must terminate the agreement immediately if the referror is in breach of 15. Where the solicitor or law practice has any term referred to in paragraph 12 above or if there is terminated the agreement under paragraph 13 reason to believe that the solicitor or law practice is in or paragraph 14 above, the solicitor or law breach of such term. practice, as the case may be, may continue to act in matters the solicitor or law practice was instructed before the termination but should not accept any further referrals from the referror. staged accident or otherwise committed any fraud, dishonesty, crime or illegal conduct, the solicitor or law C) PRoviDing WeLfARe practice has a duty to advise the client of the same and ASSiStAnCe to CLientS the legal consequences of misleading the Court. The 16. Solicitors should bear in mind Council’s solicitor or law practice should also advise the client to Guidance Note 1 of 2004 on Providing Welfare Assistance to Clients, where Council advised or take other corrective action. If the client refuses to that lending monies by a law practice to clients accept the advice or if the referror refuses to make the will put a solicitor in a position of personal the solicitor or law practice, as the case may be, must creditor/debtor relationship with his client and terminate the agreement immediately and cease to act the debt would be re-paid only if the client’s case in the matter. When advising the client, the solicitor was either settled or paid. Council also advised must not knowingly assist in or encourage any fraud, that if the client’s case was pending litigation, dishonesty, crime or illegal conduct. The solicitor must allegations of maintenance and champerty also, at all times, comply with his ethical obligations not could be made against the law practice. Law to knowingly mislead or deceive the Court: see Rules 56 practices should direct clients who are foreign to 59 PCR. workers to appropriate organizations that can provide welfare assistance to them. 15. Where the solicitor or law practice has terminated the agreement under paragraph 13 or paragraph 14 above, the solicitor or law practice, as the case may be, may continue to act in matters the solicitor or law practice was instructed before the termination but should not accept any further referrals from the referror.

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9. (C) PRoviDing WeLfARe ASSiStAnCe to CLientS

16. Solicitors should bear in mind Council’s Guidance Note 1 of 2004 on Providing Welfare Assistance to Clients, where Council advised that lending monies by a law practice to clients will put a solicitor in a position a creditor/debtor relationship with his client and the debt would be re-paid only if the client’s case was either settled or paid. Council also advised that if the client’s case was pending litigation, allegations of maintenance and champerty could be made against the law practice. Law practices should direct clients who are foreign workers to appropriate organizations that can provide welfare assistance to them. Refer to: 1. Practice Pitfalls and Tips, “How to Meet the Standards of Adequate Professional Service with a Letter of Engagement” (Singapore Law Gazette, March 2003) 2. “Letter of Engagement or Warrant to Act of a Law Practice” (Singapore Law Gazette, March 2008) 3. “Advising Clients of Their Duty ot Preserve Documents for Discovery in Litigation” (Singapore Law Gazette, June 2010) Compliance with rules 35 and 36 of PCR Although a solicitor is not required to advise his or her client in writing of the matters stated in rules 35 and 56 PCR, The Law Society recommends that solicitors draw up a letter of engagement to incorporate the advice required to be given under these rules. A sample letter of engagement can be found at Law Society’s website at www.lawsoceity.org.sg (click Legal Ethics > Warrant to Act and Letter of Engagement). Warrant to Act containing privileged material Where the Warrant to Act contains privileged material, it may nevertheless be disclosed by expunging that material before disclosure. Alternatively, the solicitor should obtain a further brief warrant that does not contain such material for purposes of disclosure: Tung Hui Mannequin Industries v Tenet Insurance Co Ltd and Others [2005] 3 SLR(R) 184. [Society’s Note: It is therefore good practice to keep the Warrant to Act a separate document from the fee agreement, so that it can be readily furnished without having to disclose

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[Ethics Committee Guidance: 10 March 2008]

There is nothing in the Act, PCR or the Society’s Practice Directions that prohibits a client from engaging two law advised the client on their of engagement, including their respective costs for acting in the matter, then proceed to act for the client in the matter. Each law under their respective retainers with the client, including

[Ethics Committee Guidance: 12 December 2008] 50

[Refer to 2011 Guide P12-176] PDR 1989, Chapter 6, paragraph 1: Presenting a News Show on the Radio or Television

Broadcasting: Reading news on Radio It is not improper for a solicitor to present a news show and newsreel on television

on the radio or television. The Council of the Law Society of Singapore recently had occasion to consider the application [Refer to 2011 Guide P147 paragraph 9] of the ruling on page 6 of the 1972 Practice ment through press or TV Directions. [Ethics in practice, Singapore Law Gazette, March After discussion, the Council resolved that it 2010] had no objection to a solicitor reading news on the radio and presenting on the newsreel on ments through the press or TV, unlike television subject to non-disclosure of his/her name the responsibility for which rests with places, would not be touting or be reasonably regarded as touting. This is because ments through the him/her. press or TV do not have the added danger of direct-inThe Council further resolved that it had no objection to the words “Advocates and Solicitors” appearing against their names in the because of the presence of his lawyer or his “tout”). Telephone Directory. In addition, in the absence of the element of direct inperson solicitation in ments through the press or TV, the general public’s need for information about legal services would outweigh the concerns arising from the commoditisation of legal services. Hence, ments through the press or TV would not be in the legal profession or to otherwise bring the legal profession into disrepute” under rule 7(1)(a) PR. [Refer to 2011 Guide P146 paragraph 4] [Ethics Committee Guidance: 12 June 2009]

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but every solicitor of the law practice is responsible governing publicity in Singapore, which are found in Part III of the PR. Thus, the name of the law practice should not be disclosed in any of the scenes as such disclosure may reasonably be regarded as touting under rule 6(3) PR. It is, however, not improper for the name of the law practice to appear in the closing credits as acknowledgment of the law practice’s participation. In addition, every solicitor of the law practice must comply with his or her ethical obligations in rule 24 PCR by taking all necessary measures to ensure that

documents should be securely stored out of sight during (Refer to rule 6(1)(b) of PR: Responsibilities for publicity within Singapore.) [Refer to 2011 Guide P146-147 paragraph 5] TV Commercials [Ethics in Practice, Singapore Law Gazette, March 2010; Ethics Committee Guidance: 9 February 2010] A solicitor should ensure that a TV commercial advertising his law practice is not reasonably regarded as misleading under rule 7(1)(b) PR because the commercial, which is usually brief, is primarily viewed by laypersons who can easily form misimpressions that A TV commercial may be reasonable regarded as misleading if it: a) Contains a misrepresentation (eg contradictory statements); b) Omits a material fact (eg failure to state that the law practice only acts in uncontested divorce matters if the practice has no expertise or experience in contested divorce matters); (eg only a number is given without stating the name of the law practice); or results that can be achieved by the solicitor or his law practice (eg stating that the law practice will be able to recover party and party costs in a civil matter).

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the dignity of the legal profession under rule 7(1)(b) PR if it suggests that other law practices overcharge their fees or sets out price lists. However, it is not improper for the to provide peace of mind and meet budgetary concerns, as such arrangements are recognised under rule 35(d) PCR. It is nevertheless advisable that, for proper compliance with rules 35 and 36 PCR, a solicitor’s duty to disclose detailed information relating to fees would be best discharged by personally explaining it to the client as opposed to highlighting it in a brief TV ment. [Refer to 2011 Guide P150] Complimentary Advertising in Newspaper [Ethics Committee Guidance: 22 June 2009] complimentary advertising in a newspaper, so long as rules 6 and 7 PR. In particular, the description of the be in accordance with rule 6(1)(a) and (2). [Refer to 2011 Guide P153 paragraph 1]

51

PDR 1989, Chapter 6, paragraph 9: Publicity by Solicitors Through Public Appearances and Contributions to Publications Public Appearances by Solicitors After discussion, the meeting adopted by the Law Society’s revised interpretation of Rule 1 of the Solicitors’ Practice Rules, 1936, made by the Council of the Law Society of England. In adopting the recommendations of the Law Society, it was agreed that no change be made in the existing rules of etiquette to the profession in Singapore, but that any member of the Bar wishing to avail himself of the new ruling of the Law Society should obtain prior approval of the Council. It was further agreed not to circularise of the Bar on this matter, but the principle would be applied when the occasion arose.”

A. Public Appearances by Solicitors a) makes an appearance on the radio or television; b) gives a talk or lecture; c) gives an interview to the press; d) contributes an article or writes a letter to the press; or e) edits or writes a book or other publication on a name, the fact that he is a solicitor and the name of his law practice and particulars may be given of

PDR 1989, Chapter 6, paragraph 20: Answering of Questions on legal matters publication or appearance. in non-legal publications (newspapers/ magazines) [Refer to 2011 Guide P147 paragraph 7]

[Afternote: For more detail on use of descriptions Council has ruled that the service to be provided and designations, refer to Paragraph [ ] herein by the Solicitor itself is not objectionable, (formerly Council’s Ruling 1 of 2001) and the Guide provided that the name of the Solicitor or to Starting a Practice – What Every Lawyer should know accessible from the Law Society’s website at: publication. This aside, the Solicitor concerned h t t p : / / w w w. l a w s o c i e t y. o rg . s g / f o r M e m b e r s / is reminded that such services can entail legal R e s o u r c e C e n t r e / R u n n i n g Yo u r P r a c t i c e / consequence in the event wrong advice is given StartingaPractice/AGuidetoStartingaPractice/ WhatEveryLawyerShouldKnow.aspx#22.] 189


resulting in loss sustained by readers who have B. Organising Seminars adopted such advice. [Ethics Committee Guidance: 27 May 2005] It is not improper for a law practice to organise and a seminar for of the public to be conducted at its premises as a means of self-promotion and charge ission fees. However, the law practice must ensure compliance with the PR at all times. [Refer to 2011 Guide P147 Paragraph 8]

C. Answering of Questions on Legal Matters in non-Legal Publications [Formerly PDR 1989, Chapter 6, para. 20; Ethics Committee’s Guidance: 14 May 2010] Rule 10 does not apply to the answering of questions by solicitors on legal matters in non-legal publications, as a non-legal publication is not a “facility” which holds itself out as giving legal assistance to the public. It is permissible for solicitor, the name of his law practice and particulars may be

This aside, solicitors should be mindful that providing such a service can entail legal consequences in the event wrong advice is given resulting in loss sustained by readers who have adopted such advice. Solicitors may therefore wish to include an appropriately worded disclaimer for the inquirer to seek independent legal advice before acting on any advice set out in the publication. [Refer to 2011 Guide P154 Paragraph 1] 52

PDR 1989, Chapter 6, paragraph 10: Correspondences to Potential Clients where Solicitor is Permitted to Act for More than one Client in a transaction

The Committee wishes to remind of the Bar that the use of the undermentioned (a) In circumstances where a solicitor is permitted to act for sentence in a letter written by a solicitor is an more than one client in a particular transaction, the solicitor should be mindful of the danger of using phrases which infringement of the rule against touting, viz:can be construed as an invitation to employ the solicitor, “If you want us to act for you, please instruct us which will infringe the rule against touting. Thus, even if the accordingly or if you have your own solicitors, solicitor has been informed by his client that the other party wishes to retain the solicitor to act for him, it is suggested that please instruct them to us.” the letter to the other party should take the following form:The Committee would further like to direct the attention of of the Bar to page 7 of Sir “I understand from my clients that they have arranged to Thomas Lund’s “A Guide to the Professional sell to you the above property at the price of ____ subject to Conduct and Etiquette of Solicitors” wherein it contract, and that you would like me to act on your behalf. is suggested that if a solicitor for one party does While I should be happy to act for you if you so wish, I not know who is to act for the other party to a would point out that you are not bound to employ me and are conveyance, the letter to the other party should entitled to instruct any other solicitor of your own choosing. be worded thus:wish that I should act for you, or let me have the name and address of the solicitors who will act for you.”

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“I understand from my clients that they have arranged to sell to you the above property at the price of _____________ subject to contract. In order that the matter may proceed, will you please let me know the name and address of the solicitors who will be acting for you.”

In contrast, the use of the following sentence in a letter, without more, infringes the rule against touting as it does not make clear that the recipient is entitled to instruct a solicitor of his own choice:

“If you want us to act for you, please instruct us accordingly or if you have your own solicitors, please Even if the solicitor has been informed by instruct them to us.” his client that the other party wishes the same solicitor to act for him, it is suggested that the letter to him should take the following forms:- to act for the other party to a conveyance, the letter to the other party should be worded thus (according to Sir “I understand from my clients that they have Thomas Lund’s A Guide to the Professional Conduct arranged to sell to you the above property at the price of _______________ subject to contract, and that you would like me to act on your behalf. While I should be happy to act for you if you so “I understand from my clients that they have arranged wish, I would point out that you are not bound to sell to you the above property at the price of _____ to employ me and are entitled to instruct any subject to contract. In order that the matter may proceed, other solicitor of your own choosing. Will you will you please let me know the name and address of the solicitors who will be acting for you.” wish that I should act for you, or let me have the name and address of the solicitors who will (Refer to: act for you.” It is of course, not suggested that the form should be copied to the very letter but the purpose of this circular is to warn of the danger of using phrases which can be construed as an invitation to employ them. Touting--Consulting Solicitor of Banks and Finance Companies A member of the Bar has brought to the Council’s attention that personnel of some banks their borrowers to consult the Solicitors who are already acting for them. of the Bar are reminded that such practice constitutes touting and they should discourage this if and where it is known to them.

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and


PDR 1989, Chapter 6, paragraph 12: third Party Publicity inclusion of firm’s name in Annual Reports of Company Clients a) Amendment to rule 9 PR in 2001

[“Understanding the Recent Amendments to the of the Bar are informed that there Professional Conduct and Publicity Rules”, Singapore Law Gazette, December 2001] name as solicitors in the Annual Reports of Company clients. “The impact of IT was most felt with the introduction of the internet. The Council received from However, it must be made clear that such that they were being asked to hyperlink their inclusion should only be made at the request websites with their clients or to give information on their of Company clients, and that solicitors should name in such Annual Reports

A sub-committee consisting of of the IT and ethics committees was formed in 2000 to study the impact of IT on ethics. The sub-committee’s work led to the amendment of rr 6 and 9 of the Publicity Rules 1998, the introduction of rr 11A and 11B to the Professional Conduct Rules and the Guidance Note on Ethics and IT published in this issue of the Law Gazette. The sub-committee and Council agreed that r 9 of the Publicity Rules 1998, which absolutely prohibited advocates and solicitors from participating in client or third party publicity had to be reviewed. The sub-committee and Council also agreed that any amendment of any rule must be done by studying the impact of that change generally on the practice of law and not merely from an IT point of view. The sub-committee came to the conclusion, after looking at services provided on the internet and the growing trend third parties through the internet, that r 9 of the [PR] had to change. The sub-committee’s recommendations were accepted by the Committee and Council. In essence, the amended r 9 of the [PR] allows an participate in any third party or client publicity. The only caveat is found in rr 6 and 7 of the [PR] that set out the general principles of publicity within Singapore for an The established rule of not publicising the practice in a false or misleading manner or to bring the legal profession into disrepute and the power of the Council to determine that the publicity is undesirable still stands (see r 7(1) of the [PR]).

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The provision in r 6 of the [PR] that an advocate certain conditions apply stands as well (see r 6(2) of the [PR]). In light of the liberalisation of the Rules to allow third party publicity, the Council felt that amendments were required to both Rules to provide clear guidelines as to the extent that third party publicity would be permissible. The Committee was tasked to consider the appropriate safeguards. An amendment made on 1 September 2001 to r 6 is found in a new r 6(3) of the [PR]. Rule 6(3) states that “[n]othing in these Rules shall be interpreted as permitting the doing of anything … that … may reasonably regarded as touting”. This rule reminds that although the Council has allowed advocates and solicitors to participate in client or third party publicity, the law against touting still exists and must be mindful of it when engaging in publicity whether directly or through third parties or clients (see also r 11A(1) of the [PCR] below).” [Refer to 2011 Guide P152-153 paragraph 1] b) Complimentary Advertising in newspaper

[ethics Committee guidance: 22 June 2009] complimentary advertising in a newspaper, so long as rules 6 and 7 PR. In particular, the description of the be in accordance with rule 6(1)(a) and (2). [Refer to 2011 Guide P153 paragraph 1] 54

PDR 1989, Chapter 6, paragraph 13: It is proper to use envelopes printed with the names Printing of names on envelopes telephone numbers, provided such envelopes are used The Committee considered enquiries which had exclusively for professional business. been received as to whether envelopes printed with the names of of the Bar or the (Refer to: numbers, constituted a breach of professional etiquette. After discussion it was agreed that there was no objection to the use of such envelopes, provided such envelopes were used exclusively for professional business.

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Rul/1/2000: Corporate Stationery

1. are kindly reminded that under Rule 6 of the PCR, a solicitor must comply with all directions of the 1. are kindly reminded that under Council on professional stationery, signs, signboards, and Rule 6 of the PCR, a solicitor must comply with nameplates. all directions of the Council on professional stationery, signs, signboards, and nameplates. 2. The Council has recently approved the publication on 2. The Council has recently approved the Patent Attorney The Council had previously approved the publication of the designation and name of a Patent Attorney/ for its international or regional practice. The Council had previously approved the publication of the names of foreign legal international or regional practice.

56

PDR 1989, Chapter 7, paragraph 3(b): Drawing money for legal costs from client Solicitors’ s Rules 1985

While all practising solicitors should be familiar with the SAR had previously noted with concern the increasing frequency of complaints of the Law Society has noted with concern the from the lay client of monies from the client being increasing frequency of complaints from the lay applied towards payment of the solicitors’ costs without the client of monies from the client being knowledge or consent of the client. applied towards payment of the solicitors’ costs without the knowledge or consent of the client. Practitioners are urged to pay full heed to rule 7(1)(a)(iv) of the SAR in drawing money for their costs from client Practitioners are urged to pay full heed to rule such withdrawal and in any case there must be a bill of costs or other written intimidation of the amount of the costs incurred. any case there must be a bill of costs or other written intimidation of the amount of the costs Signatories to cheques drawn on client should be incurred. persons meeting the requisite requirements under rule 8(7) of the SAR. Signatories to cheques drawn on client While all practising solicitors should be

a dangerous practice which the Council deprecates. The position as stated in the last paragraph is covered by Section 74 Sub-Section 2 of the

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PDR 1989, Chapter 7, paragraph 4: Procedurally it would save time and would be of assistance to the Court if all papers were properly Adoption Procedure The Council considered the Report of the sub- proceeding are observed: committee on adoption procedure and accepted the sub-committee’s recommendations. It was decided that the Report be forwarded to the Attorney-General for consideration indicating at the same time that the Council had accepted the sub-committee’s recommendations. Procedurally it would save time and would Form 151, together with all the necessary documents be of assistance to the Attorney-General if all 3. Filing of consent of Director of Social Welfare

steps in an adoption petition observed:– 1. Copy to send to Attorney-General requesting him to act as guardian ad litem. 2. Filing Consent of Attorney-General to act as guardian.

4. Either the consent of relevant persons (Form 152

3. Attorney-General appointed guardian. 4. If dispensation of Consent is to be applied the GIA and any relevant persons. Any application to dispense with consent of a relevant person (“the for, it should be stated in the Petition. 5. Applications for dispensation of Consent 153 of the Rules of Court and served on the relevant person unless the court otherwise orders after the investigation report of the Attorney(Refer to: as possible the reasons for the application. 6. Applications for dispensation of service (rule General is appointed guardian. Attorney-General has been appointed guardian ad litem, are to be served on the AttorneyGeneral.

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PDR 1989, Chapter 7, paragraph 5(a): executive Appointments and engagement in Directorship Business, trade or Calling The meeting considered the activities of A. Directorship Advocates and Solicitors who are directors of Practising solicitors are entitled to hold the post of director of a company engaged in a commercial companies. enterprise subject to the following conditions:After discussion, it was decided that in the opinion of the Council a practising Advocate and Solicitor was entitled while so practising, honourable one that does not detract his status as a to hold the post of director of a company engaged in a commercial enterprise subject to the following conditions:– arrangement with the company involving him in the

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be an honourable one that does not detract his calculated to attract business to him unfairly or to lead to any other infringement of the rules of etiquette of the contractual arrangement with the company involving him in the status as a salaried any way prohibited by the Act, Rules 10 and 11 of the PCR or any subsidiary legislation made under the Act. such as is calculated to attract business to him unfairly or to lead to any other infringement of the rules of etiquette of the profession.

(Refer to:

PDR 1989, Chapter 7, paragraph 5(b): employment Agency, firm or Company The Council has ruled that the assumption Note: exceptions regarding executive appointment for of proprietory hip, an executive solicitors in a limited liability law partnership at rule partnership or an executive directorship in such a commercial enterprise will transgress Section

B. executive Partnership/Directorship employment Agency, firm or Company

in

PDR 1989, Chapter 7, paragraph 5(c): An executive partnership or an executive directorship in Appointment of Solicitors as Company transgress Secretaries Section 83 The Council has given careful consideration C. Solicitor’s Appointment as Company to the question of practising Advocates and Secretary Solicitors occupying the position of Secretaries to Companies formed under the Companies [Ethics Committee Guidance: 29 May 2009] Law Legislation. It is proper for a solicitor to be appointed as a company The Council has considered, amongst other secretary, whether for the law practice’s own clients things, the position as outlined in Sir Thomas Lund’s book “A Guide to the Professional exchange for consideration. Conduct and Etiquette of Solicitors” and the practice in England, together with the possible However, if a solicitor acts as a company secretary for contravention of sections 30 and 80 of the Legal Profession Act, 1966, in relation to clients will be the clients of the solicitor’s law practice the profession’s independence whenever an as well, even if they do not directly pay the fee to the advocate and solicitor is engaged in private solicitor for his or her services, but to the external practice to act as a Company Secretary as This is because acting as a company secretary for an mentioned above. for consideration amounts to the practice of law and can only be effected through a proper practice structure. This is contemplated by section 25(1)(a)-(e) of the Act which provides that every solicitor must, before he does any act in the capacity of an advocate and solicitor, accompanied

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Having regard to the above consideration, the Council has now taken the stand that there should be no objection to a practising advocate and solicitor being employed as a part-time Secretary in a limited company.

by evidence of the practice structure in which he will be practising. Section 26(1)(a)-(c) of the Act also prohibits any advocate and solicitor from applying for

to practise in a proper practice structure. In addition, rule 5 PCR prohibits an advocate and solicitor from To remove any possible doubt in the minds of practising in more than one law practice. of the Bar there is no objection also to advocates and solicitors being directors of Hence, any services that the solicitor renders as a companies. company secretary in exchange for consideration should be effected through his/her law practice to PDR 1989, Chapter 7, paragraph 5(d): avoid circumventing the requirements of the Act, the Company Secretary SAR, the Legal Profession (Professional Indemnity Insurance Rules (Cap. 161, R 11, 2002 Rev. Ed. Sing) and the Society’s Practice Directions. It follows that of Solicitors offers part-time companies the solicitor should obtain prior approval from his/her secretarial and directorship services, such law practice if he/she is acting as a company secretary legal services provided. Consequently, no in his/her capacity as an advocate and solicitor in salaried employment arises in such a situation exchange for consideration. to warrant a claim to entitlement of F. In addition, if it is the external corporate secretarial However, the Council felt that the attention lawyer for his/her services as a company secretary, the practising Solicitor who takes on employment unrelated to his legal practice may well as a “person who, as a principal or on behalf of transgress his profession another...has power, express or implied, to retain or employ...a solicitor, a law corporation or a limited liability law partnership...” for non-contentious business. For the reasons mentioned above, the lawyer as a company secretary independently of his/ her law practice. concurrent and successive, could potentially arise between the law practice and the external corporate

of his/her general professional ethical obligations, including rule 28 PCR. may be precluded from acting against an external future under rule 31 PCR and the general law. As a matter of good practice, the law practice should and/or its clients in the future.

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From a professional indemnity angle, the professional indemnity policy covering the law practice which the solicitor is in will extend to the solicitor’s services as a company secretary only if the services are provided by him/her through, and as part and parcel of, his/her law practice. It follows that the professional indemnity policy will not cover the solicitor’s work as a company secretary if the work is provided outside, or independently, of his/ her law practice. D. Solicitors Doubling or Acting as Housing Agent [Formerly RUL/1/1994] 1. It is not only a tradition but an article of faith of the Bar that the honour and dignity of the profession should at all times be maintained. 2. In the view of the Council carrying on the business of a housing agent in tandem with that of a lawyer would not be compatible. 3. Section 83(2)(i) of the Act, which deals with the disciplining of of the Bar, states that a solicitor may be struck off or suspended for cause if he carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or in any way incompatible with it, or is employment in any such trade, business or calling. 4. The calling of a housing agent, “broke” in common parlance, would detract from the honour and dignity of the Bar. The Council is therefore of the opinion that the business of a housing agent is incompatible with that of a solicitor. E. Solicitors Doubling or Acting as Estate Agents [Formerly PD/2/2010] 1. This Practice Direction takes effect from 16 November 2010. 2. The Council of the Law Society had published: (a) the Practice Ruling and Direction on Solicitors Doubling or Acting as Housing Agent in April 1994 (“the 1994 Ruling”); and (b) the Ruling 2 of 2001 on Solicitors Doubling or Acting as Housing Agent in August 2001 (“the 2001 Ruling”). 3. In view of the enactment of the Estate Agents Act 2010 (“the Act”), this Practice Direction supersedes the 2001 Ruling. The new Practice Direction is set out at paragraphs 4 to 8 below. 4. In the 1994 Ruling, the Council ruled as follows: 198


“It is not only a tradition but an article of faith of the Bar that the honour and dignity of the profession should at all times be maintained. In the view of the Council carrying on the business of a housing agent in tandem with that of a lawyer would not be compatible. The provisions of Section 83 of the Legal Profession Act which deals with the disciplining of of the Bar states that an advocate and solicitor may be struck off or suspended for cause such as: i) carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or in any way incompatible with it, or is employed in any such trade, business or calling. [subsection (2), para (i)] The calling of a housing agent, “broker” in common parlance, would detract from the honour and dignity of the Bar. The Council is therefore of the opinion that the business of a housing agent is incompatible with that of an advocate and solicitor.” 5. The Council re-considered the 1994 Ruling in 2001 and informed by the 2001 Ruling that if in the course of the practice of the solicitor, the opportunity arose for the solicitor to make an agreement with a prospective vendor or purchaser that the solicitor would could secure a purchaser or vendor (as the case might be), to “broker” a deal in such circumstances would not necessarily detract from the honour and dignity of the Bar and the solicitor was not prohibited from doing so (the “Amended Rule”). 6. The Council is of the view that the Amended Rule remains applicable after the enactment of the Act, as section 4 of the Act provides that “[the] Act does not apply to anything done – … (b) by a solicitor, in the course of practising his profession, or by any person employed by him and acting in furtherance of that course, in introducing to the client, third persons who wish to acquire or dispose of a property (whether for remuneration or otherwise), if the solicitor and any person employed by him do not “estate agency work” in section 3 …”

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7. Under section 3(1) of the Act, an “estate agent”, agency work, whether or not he carries on that or any to section 3(3), means: “any work done in the course of business for a client or any work done for or in expectation of any fee (whether or not in the course of business) for a client — a) being work done in relation to the introduction to the client of a third person who wishes to acquire or dispose of a property, or to the negotiation for the acquisition or disposition of a property by the client; or b) being work done, after the introduction to the client of a third person who wishes to acquire or dispose of a property or the negotiation for the acquisition or disposition of a property by the client, in relation to the acquisition or disposition, as the case may be, of the property by the client.” 8. The Council is also of the view that as in the 2001 Ruling, the solicitor must nevertheless at all times Rule: 8.1. where, in addition to securing the purchaser or the vendor (as the case may be), the solicitor goes further to act in the conveyancing transaction, the solicitor will not no longer apply, and the solicitor must comply strictly with the Legal Profession (Solicitors’ Remuneration) Order enacted on 1 February 2003; and 8.2. the Amended Rule is not meant to permit and is not to be read as permitting a solicitor to be an estate agent law practice. To be an estate agent in tandem with being a solicitor continues to be prohibited. [Refer to 2011 Guide P172-174]

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PDR 1989, Chapter 7, paragraph 6b): of the Bar are informed that the Notaries Public Rules ( came into fees payable to notary Public operation effective on 1st January 1996. The Notaries of the Bar are informed that the Public (Fees) Rules 1960 are revoked. Notaries Public Rules came into operation The fees payable to Notary Public are set out in the First effective on 1st July 1988. Schedule of the Notaries Public Rules. The Notaries Public (Fees) Rules 1960 are revoked.

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PDR 1989, Chapter 7, paragraph 8a): Practice training Contracts Pupils Reading in Chambers

The number of practice trainees that a member might The Secretary reported that he had received supervise at any time is limited to two. enquiries from member of the Bar as to whether there was any restriction on the number of pupils that a member might take at the same time. The decision taken by Committee was that such number should be limited to two. The Committee reconsidered its decision at the previous meeting and decided that there should be no such restriction. 61

PDR 1989, Chapter 7, paragraph 8b): Responsibilities in Supervising Practice trainees Responsibilities in Supervising Pupils The Council was recently been informed of a pupil who purported to appear on a watching brief for an Insurance Company in a Coroners Inquiry. During the Inquiry, the pupil was invited on two occasions to ask questions but declined each time without informing the Court that he had not yet been called to the Bar. The Council wishes to remind of their responsibilities in supervising their pupils.

The Council had been informed of a pupil [as the term was then known] who purported to appear on a watching brief for an Insurance Company in a Coroners Inquiry. During the Inquiry, the pupil was invited on two occasions to ask questions but declined each time without informing the Court that he had not yet been called to the Bar. The Council wishes to remind of their responsibilities in supervising their practice trainees.

The attention of the of the bar is also drawn The attention of the of the bar is also to Section of the Act.

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PDR 1989, ChAPteR 7, PARAgRAPh instead of the usual form of merely “we have 11(A): SeRviCe of oRiginAting instructions to accept service.” PRoCeSS on SoLiCitoRS PD/4/2012: effecting Service of originating The above matter has received the consideration Process, Court Documents or other Written of the Bar Committee and it is suggested Communications on a Client of Another that the prevailing practice in Singapore with Solicitor respect to service of Writ of Summons and other documents originating proceedings when a solicitor has instructions to accept service on behalf of a defendant can be improved upon. The Bar Committee is of the view that solicitors when writing to the effect that they have instructions to accept service, should state that they “undertake” to accept service and enter an “appearance” instead of the usual form of merely “we have instructions to accept service.”

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1. This Practice Direction takes effect on 12 November 2012. 2. This Practice Direction sets out the ethical duties proceedings and who is instructed to effect service of originating process, court documents or other


Where Personal Service of Documents Is Not Allowed 3. If: 3.1. the Solicitor has been in communication with the Third Party’s Solicitor and such communication is related to the Client’s actual or contemplated 3.2. the Rules of Court or other applicable law require the Solicitor to serve the Documents on the Third Party personally but permit the Solicitor to serve the Documents on the Third Party’s Solicitor as an the Solicitor must not serve the Documents on the Third Party personally unless: 3.3. the Solicitor has enquired with the Third Party’s Solicitor whether the latter has instructions to accept and 3 working days (excluding a Saturday, Sunday or public the parties that the Third Party’s Solicitor has instructions to accept service of the Documents on behalf of the Third Party. Illustrations a) The Solicitor was involved in settlement negotiations with the Third Party’s Solicitor in a tenancy dispute. Subsequently, the Client instructed the Solicitor to effect Party for the same matter: b) The Solicitor serves the Writ on the Third Party at the Third Party’s residential premises without making any enquiry whether the Third Party’s Solicitor had instructions to accept service of the Writ on behalf of the Third Party. The Solicitor is prima facie in breach of paragraph 3.3 of this Practice Direction. ii) Before effecting service of the Writ, the Solicitor wrote to the Third Party’s Solicitor to enquire if the latter had instructions to accept service of the Writ on behalf of the Third Party. The Third Party’s Solicitor indicated that he would be taking the Third Party’s instructions and would revert shortly on whether he was instructed to accept service. No reply was received from the Third Party’s Solicitor after two working days, The Solicitor then immediately proceeded to serve the Writ personally on the Third Party without waiting for the reply from the Third Party’s Solicitor. The Solicitor is prima facie in breach of paragraph 3.4 of this Practice Direction.

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c) The Solicitor was involved in settlement negotiations with the Third Party’s Solicitor in a tenancy dispute. Subsequently, the Client instructed the Solicitor to Third Party for a civil dispute unrelated to the tenancy dispute. The Solicitor did not enquire whether the Third Party’s Solicitor had instructions to accept service of the Writ on behalf of the Third Party. The Solicitor is prima facie not in breach of paragraph 3.3 of this Practice Direction. 4. Where paragraphs 3.1 and 3.2 apply except that the Solicitor is not permitted by the Rules of Court or other applicable law to serve the Documents on the Third Party’s Solicitor, the Solicitor must inform the Third Party’s Solicitor in writing that personal service of the Documents on the Third Party had been effected, without delay and as soon as possible in the circumstances, having regard to the nature of the act to be done. Ethical Duties in Effecting Personal Service of Documents 5. In all cases where the Solicitor effects personal service of the Documents on the Third Party, the Solicitor must: 5.1. limit communication with the Third Party (which only such communication as is necessary to effect 5.2. comply with his ethical duties vis-à-vis the Third Party and the Third Party’s Solicitor under Rules 30, 47, 48 and 53A of the PCR which are reproduced in the Appendix. Illustrations The Solicitor accompanied the Client to serve a notice to evict on the Third Party, who is the tenant of the Client’s premises: a) The Solicitor behaved in a hostile manner towards the Third Party by using offensive language and threatening actions. The Solicitor is prima facie in breach of paragraph 5.1 of this Practice Direction. b) The Solicitor knows that the Third Party’s Solicitor is representing the Third Party in this matter and intends to communicate with the Third Party at

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the Client’s premises in accordance with paragraph 5.1 of this Practice Direction. Pursuant to paragraph 5.2 of this Practice Direction, the Solicitor must be mindful of his additional ethical duties under Rules 30, 47, 48 and 53A of the PCR. 6. For the avoidance of doubt, this Practice Direction is subject to: 6.6.1.1 any directions of the Court (including directions that the Documents are to be served on a prevailing practice directions by the Supreme Court

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6.6.1.2 anything to the contrary in any written law, including the Act and the subsidiary legislation thereunder, in particular, Rule 48 of the PCR. PDR 1989, Chapter 7, paragraph 12: The Law Society considered a letter enquiring whether in its opinion the English rule of practice and two-thirds Rule etiquette known as the “Two-thirds Rule” whereby The Committee considered a letter enquiring Junior Counsel is paid a fee equivalent to two-thirds whether in the opinion of the Bar Committee the of that paid to his leader is applicable in Singapore. English rule of practice and etiquette known as the “Two-thirds Rule” whereby Junior Counsel The Law Society was not aware of the existence is paid a fee equivalent to two-thirds of that of such a rule and had never enforced the same in Singapore. paid to his leader is applicable in Singapore. The Committee decided that it was not aware of the existence of such a rule and had never enforced the same in Singapore.

PDR 1989, ChAPteR 7, PARAgRAPh Complaints under Section 85 of the Act 15(A): CoMPLAintS unDeR SeCtion 82 of the LegAL PRofeSSion ACt

Solicitors who make complaints or who act for The attention of member of the Bar is drawn complainants are requested to furnish to the to complaints addressed to the Law Society Secretariat of the Law Society of Singapore, 1 copy of of Singapore. In future, solicitors who make their letter of complaint with the relevant enclosures complaints or who act for complainants are requested to furnish to the secretary of the Law Society of Singapore, 25 copies of their letters of complaint with the relevant enclosures.

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PDR 1989, ChAPteR 7, PARAgRAPh 15B): CoMPLAintS

In a previous complaint investigated by the Inquiry In a complaint recently investigated by the Committee, it was noted that the complaint, under Inquiry Committee, it was noted that the investigation, was not substantiated. The Council had complaint, under investigation, was not substantiated. The Council has ruled that when be made on substantial grounds and not indulge in veiled allegations. made on substantial grounds and not indulge in veiled allegations Complaints against advocates and solicitors, which complaint to be frivolous or vexatious, the Inquiry Committee may order the solicitor to pay any person in the proceedings before the Inquiry Committee or direct that the amount be taxed by the Registrar. Such costs shall be a debt due from the solicitor to the 65

PDR 1989, Chapter 7, paragraph 17: A. In respect of deaths which have taken place before 1 January 2002, this section will apply. estate Duty – Delays in Assessment As a result of representations made to the Society As a result of representations made to the Society by by a number of Solicitors complaining of delays a number of Solicitors complaining of delays in the through the President, has had discussions with the Commissioner of Estate Duties with a view to establishing some form of standard working arrangement with the Commissioner which will have the effect of expediting assessments of estate duty and generally making matters easier for all concerned.

President, has had discussions with the Commissioner of Estate Duties with a view to establishing some form of standard working arrangement with the Commissioner which will have the effect of expediting assessments of estate duty and generally making matters easier for all concerned.

The following notes for the guidance of of The following notes for the guidance of the Bar who are acting in matters involving estate duty of the Bar who are acting in matters are issued with the approval of the Commissioner: involving estate duty are issued with the approval of the Commissioner:

forms, “Form A” to be used in cases where the deceased was domiciled in Singapore had no moveable property outside Singapore. “Form B” to be used in cases where the deceased was domiciled in Singapore and had moveable property outside Singapore. Appropriate documents, s, etc. must be annexed.

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to be used in cases where the deceased was domiciled in Singapore had no moveable property outside Singapore. “Form B” to be used in cases where the deceased was domiciled in Singapore and had moveable property outside Singapore. appropriate documents, s, etc. must be annexed.

Annex B : Practice Directions and Rulings no. Practice Directions Recommended 65 This observation form merely requires certain form merely requires certain answers not covered facilitate the examination of the Estate Duty requested to note that they should be answered “to the best of his knowledge”. A full and true of the assets of the deceased’s estate will greatly facilitate the Commissioner’s enquiry, otherwise considerable time may have to be spent examining the taxpayer’s affairs in order to discover these.

are requested to note that they should be answered “to the best of his knowledge”. A full and true of the assets of the deceased’s estate will greatly facilitate the Commissioner’s enquiry, otherwise considerable time may have to be spent examining the taxpayer’s affairs in order to discover these.

duty in respect of any property, the able person estate duty in respect of any property, the should submit to the Department a form of able person should submit to the containing a full and true statement of such the best of his knowledge. to the best of his knowledge. comprise real property, the form for “Schedule of Immovable Property” should be submitted

real property, the form for “Schedule of Immovable Property” should be submitted together with the

reasons for the delay should be stated as this may affect the question of penalty and penal interest.

the reasons for the delay should be stated as this may affect the question of penalty and penal interest. be made to as early as possible. If there are the department may be sought to enable some assets should be made to as early as possible. to be realised e.g. by release under section 37 or by the assistance of the department may be sought which are satisfactory to the Commissioner. Additional to enable some assets to be realised e.g. by the incidence of interest to a minimum. postponement of duty on conditions which are satisfactory to the Commissioner. Additional reduce the incidence of interest to a minimum.

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Annex B : Practice Directions and Rulings no. Practice Directions Recommended 65 assessment by the Commissioner the penal rate of interest at 12% should not be charged. It is however not always easy to determine whether the blame lies with this department or the taxpayer. of the Bar could assist here by making appropriate representations where the circumstances warrant that the penal rate of interest should not be charged. They are assured that the fullest consideration would be given to their views by the Commissioner.

the Commissioner the penal rate of interest at 12% should not be charged. It is however not always easy to determine whether the blame lies with this department or the taxpayer. of the Bar could assist here by making appropriate representations where the circumstances warrant that the penal rate of interest should not be charged. They are assured that the fullest consideration would be given to their views by the Commissioner.

furnished as soon as possible, without waiting for a furnished as soon as possible, without waiting request from the Department. These include: for a request from the Department. These include:– A list showing the public quotations or broker’s A list showing the public quotations or broker’s shares at the date of death. the shares at the date of death.

A schedule of Immovable Property on Form IR. 312 should be submitted in triplicate showing the full A Schedule of Immovable Property on Form IR. value of each property at the date of death ed if 312 should be submitted in triplicate showing possible by a valuation report made by a professional the full value of each property at the date of valuer. death ed if possible by a valuation report made by a professional valuer. from the date of death should be furnished together Statements of bank s for the past with explanations for any large withdrawals and deposits. similarly the savings books furnished together with explanations for any should be forwarded together with explanations for large withdrawals and deposits. Similarly any large withdrawals and deposits. A big withdrawal the savings books should be could represent a gift or other asset created with it. forwarded together with explanations for similarly a big deposit could relate to an asset not any large withdrawals and deposits. A big disclosed. withdrawal could represent a gift or other asset created with it. Similarly a big deposit could relate to an asset not disclosed deceased’s current, deposit or savings as at the date of death is required. of the deceased’s current, deposit or savings as at the date of death is required.

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A full list of insurance policies should be A full list of insurance policies should be submitted submitted together with a letter from the together with a letter from the insurance company insurance company certifying the amount certifying the amount payable. payable. A letter from the employer stating the amount due to A letter from the employer stating the amount the deceased at the date of death. due to the deceased at the date of death. A full list should be submitted together with the A full list should be submitted together with the estimated value. estimated value. If the amount is large, a statement from a reputable If the amount is large, a statement from a jewellery dealer certifying the value of the jewellery at reputable jewellery dealer certifying the value the date of death. of the jewellery at the date of death. A valuation of the shares made by a professional A valuation of the shares made by a professional ant together with his basis of calculation should ant together with his basis of calculation be furnished. s of the companies concerned should be furnished. nearest to the date of death should be attached. A letter from the Company’s Secretary stating the price at s of the companies concerned nearest which the transaction nearest to the date of death was to the date of death should be attached. A letter concluded would also assist in this matter. from the Company’s Secretary stating the price at which the transaction nearest to the date of death was concluded would also assist in this A valuation of the deceased’s share made by a matter. professional ant together with his basis of calculation should be furnished. The s of the business for the year up to the date of death and the A valuation of the deceased’s share made by two years preceding are also required together with a professional ant together with his copies of the deceased’s current s with the basis of calculation should be furnished. The s of the business for the year up to the date of death and the two years preceding are also required together with copies of the If the deceased was a contributor, a statement should deceased’s current s with the particular be obtained from the board concerning the amount due. If the deceased was a contributor, a statement Value of household items such as works of art, should be obtained from the Board concerning furniture, refrigerator, radio, television, clothings, the amount due. etc. should be declared. In case of wealthy persons a valuation made by a ed auctioneer or other Value of household items such as works of art, furniture, refrigerator, radio, television, clothings, etc. should be declared. In case of wealthy persons a valuation made by a would be of assistance.

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Bills, vouchers, statements of s and Bills,

vouchers,

statements

of

s

and

be attached (See section 23 Estate Duty (allowance is subject to section 27 of the Estate Duty

are urged that when enquiries are received from the Commissioner, they should attempt as far as possible to answer these with the assistance of their clients and thee answers should be as complete as possible rather than wait for the Comptroller to ask obvious queries. Solicitors should not act as mere post boxes between the Commissioners and their clients. Some queries, like those referred to above, can reasonably be anticipated and all queries should be dealt with expeditiously to reduce delays to a minimum.

are urged that when enquiries are received from the Commissioner, they should attempt as far as possible to answer these with the assistance of their clients and thee answers should be as complete as possible rather than wait for the Comptroller to ask obvious queries. Solicitors should not act as mere post boxes between the Commissioners and their clients. Some queries, like those referred to above, can reasonably be anticipated and all queries should be dealt with expeditiously to reduce delays to a minimum. B. Subsequent to 1 January 2002, the forms that who are acting in matters involving estate duty for deaths, which may have taken place on or between 1 January 2002 and 14 February 2008 [estate duty has been abolished with effect from 15 February 2008], can take guidance from Gopalan Raman, Probate and istration in Singapore and Malaysia . “USE OF FORMS FOR DEATH CASES After the petition for probate/ letters of istration in Singapore is granted by court, the Executor or the forms Either to the Civil Registry, Subordinate Courts Or to the Commissioner of Estate Duties File the following forms to the Civil Registry, Subordinate Courts only when an Estate Duty Return to the Commissioner of Estate Duties is NOT

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Form SC 1: Statutory Declaration Form SC 2: Check-List (Deceased died domiciled IN Form SC 3: Check-List (Deceased died domiciled Form SC 4: Schedule of Property Form SC 5: Supplementary Schedule of Property Property/ Supplementary Schedule of Property Forms SC 4, 5 and 6 will be annexed to the Grant of Representation. Deceased died domiciled in Singapore File Forms SC 1, SC 2 and SC 4 to Subordinate Courts after the petition is granted File Form SC 5 or SC 6 when necessary Deceased died domiciled outside Singapore File Forms SC 1, SC 3 and a list of deceased’s property is granted *The Executor or of the Estate should the Commissioner of Estate Duties in respect of the following cases: 2. Deaths (where deceased died domiciled in

dwelling-houses in Singapore (not used by any person wholly or partly for any trade, business, profession or vocation except as an approval Technopreneur Home death or

gifts, amount due from others, property (immovable and unpaid sale proceeds of property (immovable or

of death:

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i. Share in Dwelling-house in Singapore used by any person wholly or partly for any trade, business, profession or vocation which was not an approved ii. Share in HDB Shop-house / Commercial Property / Vacant Land in Singapore

iv. Shares in any Private Company / other Unqouoted Shares (not NTUC shares / New Singapore Shares / v. Unpaid Sales Proceeds of deceased’s Immovable Property including dwelling-house (option to purchase the property exercised by the buyer before

gift within 5 years before death or at any time but the deceased continued to retain possession or enjoyment of the property within 5 years before death i. Share in any Immovable Property (residential or

iii. Shares in any Private Company / other Unqouoted Shares (not NTUC shares / New Singapore Shares /

years before death: i. Share in any Immovable Property (residential or

iii. Shares in any Private Company / other Unqouoted Shares (not NTUC shares / New Singapore Shares /

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3. Deaths (where deceased died domiciled outsider

dwelling-houses in Singapore (not used by any person wholly or partly for any trade, business, profession or vocation except as an approved Technopreneur Home or Singapore as at the date of death: i. Dwelling-house used by any person wholly or partly for any trade, business, profession or vocation which ii. HDB Shop-house / Commercial Property / Vacant Land Penalties will be imposed on the Executor or of the Estate who willfully fails to comply

The relevant forms can be ed here: http://www. iras.gov.sg/irasHome/page.aspx?id=772” (Refer to: Practice Directions: Applications for grants of probate,

Practice Directions: Applications for dispensation of

Practice Directions: Filing of schedules of property for non-dutiable estates where death occurred before 15

Practice Directions: Filing of schedule of assets for and Singapore and Malaysia (LexisNexis, 2nd Edition,

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PDR 1989, Chapter 7, paragraph 18: are advised that the tax deduction does international Law Conferences – tax not apply to all International Law Conferences. The Comptroller of Income Tax has stated that each case Deductions Allowable Reference is made to the Society’s Circular dated 3/6/1971 on tax deductions for attending International Law Conferences which is annexed hereto. are advised that the deduction does not apply to all International Law Conferences. The Comptroller of Income Tax has stated that each case will be examined on its own merits and only expenses incurred for attending approved International Law Conferences will be allowable as a deduction under the Income Tax Act. intending to attend any Law Conference therefore are requested to notify the Secretary in writing to enable him to apply to the Commissioner of Inland Revenue for the necessary approval prior to their attending the Conference.

will be examined on its own merits and only expenses incurred for attending approved International Law Conferences will be allowable as a deduction under the Income Tax Act (Cap 134, Rev . intending to attend any Law Conference therefore are requested to notify the Secretary in writing to enable him to apply to the Commissioner of Inland Revenue for the necessary approval prior to their attending the Conference.

International Law Conferences: “Representations have been made by the Law Society of Singapore to the Commissioner of Inland Revenue on the question of the allowances and expenses for tax purposes in connection with attendance by of the Bar at International Law Conferences. It is

advised that the reasonable costs and expenses of solicitors for attending approved international law conferences will be allowable as deductions for income tax. Each case, however, will be considered International Law Conferences: “Representations have been made by the Law on its own merits and the right is reserved to Society of Singapore to the Commissioner disallow expenses in any case where the quantum of Inland Revenue on the question of the is not substantiated to be wholly and exclusively for allowances and expenses for tax purposes in connection with attendance by of Allowance of such expenses will be subject to the the Bar at International Law Conferences. It is following:– has advised that the reasonable costs and expenses of solicitors for attending approved travelling and maintenance of the solicitor himself international law conferences will be allowable as deductions for income tax. Each case, however, will be considered on its own merits and the right is reserved to disallow expenses in any case where the quantum is not substantiated purpose of attending the conferences. conference, deductions would be limited to those Allowance of such expenses will be subject to the following:– of travelling and maintenance of the solicitor e.g. reciprocal hospitality to other delegates during

it would be inissible, e.g. if it were incurred as part of the process of acquiring some additional

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the conference, deductions would be limited qua practitioner and not qua delegate of some to those expenses relating solely to the some satisfactory evidence of cost.” excluded, e.g. reciprocal hospitality to other

object, it would be inissible, e.g. if it were incurred as part of the process of acquiring

practitioner and not qua delegate of some

produce some satisfactory evidence of cost.” 67

PDR 1989, Chapter 7, paragraph 19: The attention of of the Bar is drawn to the Withholding tax on interest provisions of section 45 of the Income Tax Act as The attention of of the Bar is drawn to the provisions of section 45 of the Income Tax Act as amended by the Income Tax Amendment No. 2 Act which came into force on the 2nd December, 1975. Before that date there were differing views on the interpretation of section on interest was only payable when the interest was actually paid by a resident of Singapore to a non-resident of Singapore, but the Comptroller takes the view that the liability to deduct withholding tax on interest has always arisen when it is due to the non-resident taxpayer even though it has not been paid. For present purposes, this is an academic argument because

amended by the Income Tax Amendment No. 2 Act which came into force on the 2nd December, 1975. Before that date there were differing views on the

that withholding tax on interest was only payable when the interest was actually paid by a resident of Singapore to a non-resident of Singapore, but the Comptroller takes the view that the liability to deduct withholding tax on interest has always arisen when it is due to the non-resident taxpayer even though it has not been paid. For present purposes, this is an academic argument because under the current provision of section 45 Income Tax Act (Cap interest is now deemed to have been paid, although it is not actually paid, if it is reinvested, accumulated, capitalised, carried to any reserve or credited to any however designed or otherwise dealt with on behalf of the other persons. Where interest is received by a solicitor on a client’s monies and is credited to the client’s in the solicitor’s books of the client concerned or reinvested on further deposit on behalf of the client a liability now arises to make immediate payment of withholding tax within seven days of the relevant transaction in the solicitor’s books in all cases where the client is a nonresident.

as now amended, interest is now deemed to have been paid, although it is not actually paid, if it is reinvested, accumulated, capitalised, carried to any reserve or credited to any however designed or otherwise dealt with on behalf of the other persons. Where interest is received by a solicitor on a client’s monies and is credited to the client’s in the solicitor’s books of the client concerned or reinvested on further deposit on behalf of the client a liability now arises to make immediate payment of withholding tax within seven days of the relevant transaction in the solicitor’s books in all cases where the client The attention of of the Bar is drawn also to is a non-resident. the penalties for breach of these provisions. The attention of of the Bar is drawn also to the penalties for breach of these provisions. 214


PDR 1989, Chapter 7, paragraph 20: Capital Allowances and Deductions on Law Capital Allowances on Lawyer’s Library Books On representations made by the Law Society, are informed that the Commissioner

On representations made by the Law Society, the Commissioner of Inland Revenue had that law books of practising lawyers are regarded as ‘plant’ and capital allowances are claimable on them following Munby v Furlong, [1977] 2 All ER 953. Such capital allowance can be claimed under section 19 of the Income Tax Act (Cap 134, Rev Ed. 2008. With regard to periodicals and journals, the Sing) at the rate of 10% or a write-off over three present practice of recognising them as revenue years under section 19A(1). expenditures will continue. Expenditure incurred in purchasing replacement volumes With regard to periodicals and journals, the present and editions may also be treated as revenue practice of recognising them as revenue expenditures expenditure provided that the replaced volumes will continue. Expenditure incurred in purchasing and editions have not been granted capital replacement volumes and editions may also be treated allowances. as revenue expenditure provided that the replaced volumes and editions have not been granted capital PDR 1989, Chapter 7, paragraph 21: allowances. books of practising lawyers are regarded as ‘plant’ and capital allowances are claimable on them following Munby v Furlong, [1977] 2 All ER 953. The rate of annual allowance in respect

Deduction from income tax on Purchase of Law Books Refer to: Sections 19 and 19A of the Income Tax Act. It was stated that deduction from income tax was allowed in the case of replacement of law Books books, but not for the purchase of new law books. It was stated that deduction from income tax was allowed in the case of replacement of law books, but not for the purchase of new law books under section Income Tax Act (Cap 134, Rev Ed. not been claimed as capital allowances under sections 69

PDR 1989, Chapter 7, paragraph 27: of the Bar are asked to note that as letters enquiring whether a deceased person when alive had Wills – inquiry if Any Made

made a Will are becoming so frequent, and with a view to saving time, the absence of any replies to such enquiries after a reasonable period should be taken to mean that the deceased person had not made a Will.

of the Bar are asked to note that as letters enquiring whether a deceased person when alive had made a Will are becoming so frequent, and with a view to saving time, the absence of any replies to such enquiries after a reasonable period should be taken to mean that Wills - Information Re: It is Customary for solicitors who have been instructed the deceased person had not made a will. to act in the estate of a deceased person to circulate Wills - Information Re: It is Customary for solicitors who have been instructed to act in the estate of a deceased may place notices on Information on Wills enquiring whether the deceased made a Will in in the Singapore Law Gazette’s section on notice – Information on Wills.

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70

Considerable work is involved in sending out these letters and the Council of the Law Society have decided to insert such enquiries in the Law Society’s circular on the necessary particulars being furnished by the instructing solicitor. A nominal fee of $50.00 will be charged for the service.

1989 PDR, Chapter 7, paragraph 28: trade Marks & Company names The Registrar does not consult the Trade Marks Index when considering applications for a proposed new company name and the acceptance of a particular name is not an indication that no trade marks rights exist in it. Applicants are therefore advised in their own interests to avoid possible expense and inconvenience by investigating the possibility that others may have trade mark rights in the names – or parts of such names – they require before applying to the Registry. Searches may be made at the Registry of Trade Marks and Patents.”

71

[Society’s Note: To place a notice in the abovementioned section of the Singapore Law Gazette, please write to the Publications Department at the Law Society of Singapore with the deceased payment of S$85.60 per notice made in favour of “The Law Society of Singapore”. All submissions must reach the Publications Department by the 5th of the preceding month of publication.] The Registrar of Companies does not consult the relevant Trade Marks Index kept by the Intellectual when considering applications for a proposed new company name and the acceptance of a particular name is not an indication that no trade marks rights exist in it. Applicants are therefore advised in their own interests to avoid possible expense and inconvenience by investigating the possibility that others may have trade mark rights in the names – or parts of such names – they require before applying to the Registry of Companies. searches may be made at the Registry of Trade Marks and Patents.”

PDR 1989, Chapter 7, paragraph 29: Phone etiquette etiquette Relating to telephone Calls The Council has again received complaints that some of the Bar do not observe the rule of Etiquette whereby when a member of the Bar calls a fellow member on the telephone, the person making the call should be ready to receive the person called when that latter answers. The Council views with regret that persons who are called should be kept waiting on the line until the person calling comes on the line.

It is a rule of etiquette that when a solicitor calls another solicitor on the telephone, the person making the call should be ready to receive the person called when the latter answers. Persons who are called should not be kept waiting on the line until the person calling comes on the line. However, this rule need not be followed in cases where it is known that the member called may only be reached through the intermediary of a secretary, in addition to the operator. [Refer to 2011 Guide P71 Paragraph 1]

It was recognised that this rule need not be followed in cases where it is know that the member called may only be reached through the intermediary of a secretary in addition to the operator.

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PDR 1989, Chapter 7, paragraph 30: Letter dated 7th August 1984 from the AttorneyGeneral’s Chambers, Singapore, which is reproduced Charity Proceedings below for the attention of all of the Bar.

Letter dated 7th August 1984 from the Attorney-General’s Chambers, Singapore, “Notwithstanding that the Charities Act 1982 has been which is reproduced below for the attention of in force since 1 January 1983, charity proceedings are still taken in the court without having regard to all of the Bar. [currently section “Notwithstanding that the Charities Act 1982 which provides that no charity proceedings has been in force since 1 January 1983, charity relating to a charity shall be entertained or proceeded proceedings are still taken in the court without with in any court unless the taking of the proceedings which provides that no charity proceedings is authorised by order of the Commissioner of relating to a charity shall be entertained or Charities. As a result parties, including the Attorneyproceeded with in any court unless the taking General, are required to appear before the Court in of the proceedings is authorised by order of the charity proceedings which obviously could not be Commissioner of Charities. As a result parties, entertained or proceeded with in the court in view including the Attorney-General, are required to appear before the Court in charity proceedings waste of time and expenses to the parties involved in which obviously could not be entertained or the proceedings. proceeded with in the court in view of section 2. I am sure you would agree that the situation is of time and expenses to the parties involved in unsatisfactory and should not be allowed to continue. the proceedings. 3. I shall therefore be grateful if you would draw 2. I am sure you would agree that the situation the attention of of your Society to the is unsatisfactory and should not be allowed to provisions of the Charities Act 1982, especially those relating to the taking of charity proceedings.” continue. 3. I shall therefore be grateful if you would ATTORNEY-GENERAL’S CHAMBERS draw the attention of of your Society to the provisions of the Charities Act 1982, especially those relating to the taking of charity proceedings.” ATTORNEY-GENERAL’S CHAMBERS

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PDR 1989, Chapter 7, paragraph 32 on Photocopying Charges/telex and facsimile Charges and Chapter 7, paragraph 32(a) on fax Charges

of the bar are informed that the Council has ruled that IDD, telex and facsimile expenses can only be recovered as “disbursements”. Please note that no surcharge introduced on any of these items is allowed as a disbursement.

of the bar are informed that the Council has ruled that IDD, telex and The Council feels that there is a need to standardise facsimile expenses can only be recovered as charges for faxes especially in the case of overseas “disbursements”. Please note that no surcharge faxes because: introduced on any of these items is allowed as a disbursement. telephone rates applied to the time the IDD line is The Council feels that there is a need to occupied in making the fax. SingTel’s measurement standardise charges for faxes especially in the of such time, however, often varies with the sender’s estimates. case of overseas faxes because: IDD telephone rates applied to the time the IDD the time the fax is sent. line is occupied in making the fax. Telecoms SingTel’s bill for each calendar month is sent out measurement of such time, however, often about halfway through the following month and varies with the sender’s estimates. identifying each fax charge in the bill and marrying with the time the fax is sent.

business.

out about halfway through the following month and identifying each fax charge in the bill and him to do so. time-consuming business.

The Council has, upon the request of , reviewed this practice direction and makes the following recommendations:-

will enable him to do so.

(i) For local and overseas faxes:

The Council has, upon the request of , reviewed this practice direction and makes the following recommendations:10 cents per page for all pages. Telecoms

Black Paper Local Overseas and Size Recommended Recommended White or Fax Charge Per Fax Charge Colour Page (i.e. side) Per Page Faxes (i.e. side) A4

$0.15

cents for each subsequent page.

1 Black and White Fax

At 50% of Telecoms published rate. This rate will invariably cover the cost of sending the

2 Colour Fax

A4

$1.00

50% of SingTel’s published rate

amounts as invoiced by SingTel, he/she is always entitled to do so. actual amounts as invoiced by Telecoms, he/ she is always entitled to do so.

disbursements.

as disbursements. 218


PDR 1989, Chapter 7, paragraph 34: g the name of the Law Practice g the firm’s name

Generally, only a practising solicitor may sign The general rule is that only a practising the name of the law practice in a professional communication. However, an unauthorised person name in a professional communication. can sign on behalf of a law practice so long as he or she does not sign in the name of the law practice. For instance, there is nothing improper for the manager, ant or cashier of a law practice to sign a letter or document on behalf of the law practice provided Manager, ant or Cashier to sign a letter he or she uses his or her own name and gives his or her proper designation. This practice extends to the she uses his/her own name and gives his/her issuance of a law practice’s ing receipts. proper designation. This practice extends to [Refer to 2011 Guide P184 Paragraph 2] 75

PDR 1989, Chapter 7, paragraph In the event of dissolution of a law practice, all 37: transfer of Clients’ Monies on should be refunded or dealt with in accordance with Dissolution

the instructions of the clients. No member of the A client in retaining a Firm is entitled to the dissolved law practice is entitled to retain clients’ services of all the of the Firm and monies without the permission of the clients. on dissolution may treat the Firm as having discharged themselves. in the event of clients’ instructions should be sought regarding such and all clients’ monies should be refunded or distribution. dealt with in accordance with the instructions of the clients. No one member of the dissolved [Refer to 2011 Guide P70 Paragraph 1] Firm is entitled to retain clients’ monies without the permission of the clients. Where clients’ instructions should be sought regarding the Change and if that is not forthcoming, the monies should forthwith be refunded to clients direct. 76

Council’s Ruling 1/2000

1. are kindly reminded that under Rule 6 of the PCR, a solicitor must comply with all directions 1. are kindly reminded that under of the Council on professional stationery, signs, Rule 6 of the PCR, a solicitor must comply with signboards, and nameplates. all directions of the Council on professional stationery, signs, signboards, and nameplates. 2. The Council has recently approved the publication 2. The Council has recently approved the name of a Patent Attorney/Patent Agent employed designation and name of a Patent Attorney/ approved the publication of the names of foreign The Council had previously approved the international or regional practice. publication of the names of foreign legal international or regional practice.

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Council’s Practice Direction 2 of 2004 Appointment of a Solicitor or a Person employed by a Solicitor to Act as Bailiff under Section 15A of the Subordinate Courts Act (Cap. 321) (the “Act”)

1. This Practice Direction takes effect on 16 July 2004.

2. The Registrar of the Subordinate Courts has informed Council of his intention to exercise his power under section 15A of the Subordinate Courts Act (Cap. 321, 2007 Rev. Ed. Sing.) to “authorise a solicitor or a 1. This Practice Direction takes effect on 16 person employed by a solicitor to exercise the powers and perform the duties of a bailiff during such period July 2004. 2. The Registrar of the Subordinate Courts has informed Council of his intention to exercise his power under section 15A of the Subordinate Courts Act to “authorise a solicitor or a person employed by a solicitor to exercise the powers and perform the duties of a bailiff during such period or on such occasion as the Registrar

may determine.” (“the Scheme”) 3. The Registrar has also informed Council that changes would be made to the Rules of Court and a practice direction would be issued shortly.

4. The Council upon careful consideration and conditions as the Registrar may determine.” deliberation of the issue has ed this practice direction that must comply with when (“the Scheme”) carrying out of the functions as bailiff, if so authorised 3. The Registrar has also informed Council that by the Registrar. changes would be made to the Rules of Court and a practice direction would be issued shortly. Note: In this Practice Direction, any reference to includes their employees duly authorised by 4. The Council upon careful consideration and the Registrar to carry out the functions as bailiff. deliberation of the issue has ed this practice direction that must comply with when 5. Professional indemnity carrying out of the functions as bailiff, if so are advised that The Law Society of Singapore’s Compulsory Professional Insurance authorised by the Registrar. Note: In this Practice Direction, any reference Indemnity Scheme does not cover a member or any to includes their employees duly person employed by a law practice in their exercise of authorised by the Registrar to carry out the the powers and performance of their duties as a bailiff. are urged to obtain their own professional functions as bailiff. insurance cover for their practices. 5. Professional indemnity are advised that The Law Society 6. of Singapore’s Compulsory Professional should be mindful of their ethical duty Insurance Indemnity Scheme does not cover not to act as a bailiff under the Act when there is a a member or any person employed by a law practice in their exercise of the powers and PCR, in particular Rules 25 to 31 therein. To preserve independence of the solicitor, Council has decided performance of their duties as a bailiff. that a member cannot act as a bailiff under section are urged to obtain their own 15A of the Act to execute the judgment of a client of professional insurance cover for their practices. his practice. Accordingly, any member or staff of the law practice acting for a judgment creditor cannot be appointed as a bailiff under section 15A to execute the 6. should be mindful of their ethical duty judgment obtained by that judgment creditor. not to act as a bailiff under the Act when there drawn to the Legal Profession (Professional therein.

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To preserve independence of the solicitor, Council has decided that a member cannot act as a bailiff under section 15A of the Act to execute the judgment of a client of his practice. Accordingly, any member or staff of the law practice acting for a judgment creditor cannot be appointed as a bailiff under section 15A to execute the judgment obtained by that judgment creditor.

7. authorised to act as a bailiff under section 15A of the Act to execute the judgment of a judgment creditor, should be mindful of their duty to maintain in and the execution thereof. ’ attention is drawn to Rule 24 of the PCR.

8. Costs Notwithstanding the application of section 15A of the 7. Act and the Rules of Court, are reminded authorised to act as a bailiff under that contingency fees are expressly prohibited by section 15A of the Act to execute the judgment section 107 of the Act and Rule 37 of the PCR. of a judgment creditor, should be mindful should not render any bill, in relation to information relating to that judgment and the any work done under this Scheme, which amounts execution thereof. ’ attention is drawn to gross overcharging that will affect the integrity of to Rules 23 and 24 of the Legal Profession the profession. 8. Costs Notwithstanding the application of section 15A of the Act and the Rules of Court, are reminded that contingency fees are expressly prohibited by section 107 of the Act and Rule 37 of the PCR. should not render any bill, in relation to any work done under this Scheme, which amounts to gross overcharging that will affect the integrity of the profession. 9 . Proceeds of sale are reminded that the proceeds of sale are not to be paid into their clients’ s as these are not clients’ monies or the practice’s be paid to the Subordinate Court’s Bailiff’s .

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9 . Proceeds of sale are reminded that the proceeds of sale are not to be paid into their clients’ s as these are All proceeds of sale are to be paid to the Subordinate Court’s Bailiff’s .

Annex C : Guidance Notes Which Have Been Repealed 1.

gn/1/2003 - guiDeLineS on PRevention of Money LAunDeRing AnD the funDing of teRRoRiSt ACtivitieS intRoDuCtion 1. On 30 September 1998, the Law Society published guidance notes for solicitors, with respect to certain provisions of the . 2. The events since 1998 have resulted in the enactment of the following laws, in response to international crime and acts of terrorism: b) The (Cap. 65A, 2000 Rev. Ed. Sing) ("SCA"), which replaced the DTA; c) The Terrorism (Suppression of Financing) Act (Cap. 325, 2003 Rev. Ed. Sing)("TSFA"); d) The United Nations Act (Cap. 339, 2002 Rev. Ed. Sing)and the United Nations (AntiTerrorism Measures) Regulations 2001. 3. In the light of these enactments, the Law Society decided to replace the Guidance Notes published on 30 September 1998, with these Guidelines. These Guidelines are published for the purpose of drawing attention to the enactments and to the possibility that lawyers may, i n the provision of their services, inadvertently assist or facilitate criminals or terrorists, in their activities or cause. It is no longer enough for solicitors to serve their clients or act on i nstructions in all transactions without making due and appropriate enquiry on the identity of their client’s and the purpose of transactions where the circumstances require. 4. These Guidelines do not attempt to set out a complete statement of the laws in Singapore prohibiting money laundering and the funding of terrorists or a comprehensive summary of the enactments. They merely highlight the salient features of the enactments, and serve to alert lawyers to situations where appropriate enquiry and prudence is required on their part. Lawyers are expected to familiarise themselves with the relevant laws. B. Definition of Money LAunDeRing “ Money laundering is the process by which criminals attempt to conceal the true origin and ownership of the proceeds of their criminal activities. If undertaken successfully, it allows them to maintain control over these proceeds and, ultimately, to provide a legitimate cover for their source of income.” (British Bankers Association) C. thRee StAgeS of Money LAunDeRing The entire process of money laundering is carried out in 3 stages, in the following order: i) Placement This is the physical disposal of proceeds (usually cash) from or for criminal activities. For instance, a drug trafficker may deposit a large cash down-payment into a lawyer’s client to purchase a property. The objective of “placement” is to get the cash into noncash economy. ii) Layering This is the process of separating illicit proceeds from the sources of crime, by creating complex layers of financial transactions designed to disguise the audit trail, thus providing the anonymity. For instance, the money launderer client may instruct his bank to pay the “dirty” money in his to his lawyer and who, in turn, is instructed to make a series of payments to various parties overseas, in various jurisdictions and/or in multiple commercial transactions (e.g. fictitious “export-import” transactions). The objective of “layering” is to 222

Annex C : Guidance Notes Which Have Been Repealed make the detection of the “dirty” money as difficult as possible, to confuse the audit trail and to break the link between the criminal and his/her proceeds of crime. iii) Integration This final process is to bring back (or integrate) the “dirty” money into the legitimate system as “clean” or legitimate money (hence having successfully “washed” the money). One way to do this is for the money laundering client to use his cash-rich in a bank to buy over a successful business. The objective is to move the “dirty” money into the legitimate economy in such a way, that no one suspects its origin. This is the ultimate objective of every money launderer. D. oveRvieW of the Anti-Money LAunDeRing LAWS 1. the offences under SCA The following activities constitute offences under the SCA: a) the laundering of one’s own criminal proceeds from drug trafficking and Criminal Conduct (sections 46(1) and 47(1)); b) acquisition of property (which represents proceeds from drug trafficking and Criminal Conduct) for no or insufficient consideration (sections 46(3) and 47A(3)); c) knowingly assisting to conceal, convert, disguise proceeds from drug trafficking and Criminal Conduct (sections 46(2) and 47(2)); and d) knowingly assisting to retain or control proceeds from drug trafficking and Criminal Conduct by arrangement (sections 43(1) and 44(1)). Criminal Conduct is defined in the SCA and it includes the offences specified in the 2nd Schedule of the SCA. 2. Duty to Disclose Section 39(1) of the SCA imposes a duty on a person who knows or has reasonable grounds to suspect that any property which represents the proceeds of drug trafficking, or was, or is intended to be used in connection with drug trafficking, to report his knowledge or suspicion. However, this rule does not apply to information relating to “items subject to legal privilege”- defined in Section 35(2) of the SCA. Therefore, a lawyer (including his/her employees) does not commit an offence under section 39 if he/she fails to make a suspicious transaction report (“STR”) if the information contains “items subject to legal privilege” (see section 39(4)). However, if a lawyer decides to make a STR, he/she may do so under pursuant to the knowledge suspicion or matters referred to in Sections 39(1), 43(1) or 44(1) of the SCA. By Sections 39(6), 43(3) and 44(3), the disclosure shall not be treated as a breach of restriction upon the disclosure imposed by law, contract or rules of professional conduct, and he/she shall not be liable for any loss arising out of the disclosure. If a lawyer relies on his/her legal privilege in not making a STR, he/she must ensure that the subject matter in question falls within the meaning of “items subject to legal privilege” in section 35(2). 3. tipping off Section 48(1) of the SCA makes it a criminal offence for any person who knows, or has reasonable grounds to suspect that an investigation under the SCA, or any subsidiary legislation under the

223

Annex C : Guidance Notes Which Have Been Repealed SCA, is being conducted or proposed to be conducted, to make any disclosure to any person which is likely to prejudice such investigation.

Section 48(2) of the SCA makes it a criminal offence for any person who knows, or has reasonable grounds to suspect that a disclosure has been made to an authorised officer under the SCA, to disclose to any person, information or matter which is likely to prejudice any investigation, which might be conducted following the disclosure to an authorised officer. However, Section 48 of the SCA does not apply to the disclosure by a solicitor or his employee, of any information or matter to his client or a representative of his client, in connection with the giving of advice to the client, or in the course of and for the purpose of the professional employment of the solicitor, or to any person in contemplation of or in connection with legal proceedings, and for the purpose of those proceedings. e. oveRvieW of Anti-teRRioRiSM LAWS 1. Anti-terrorism Laws The anti-terrorism laws are: a) b)

The United Nations Act 2001 and the United Nations (Anti-Terrorism Measures) Regulations 2001 ("UN Regulations"); and The Terrorism (Suppression of Financing) Act 2002 ("TSFA");

The UN Act and the UN Regulations were ed to give effect to the Security Council Resolutions 1373 (2001) and 1390 (2002). 2. offences under the tSfA and un Regulations The offences under the TSFA and UN Regulations include: a)

providing or collecting funds knowing (or having reasonable grounds to believe) that the funds will be used to commit, or to facilitate the commission of a terrorist act; b) dealing with property owned or controlled by, or on behalf of a terrorist, or by any entity controlled by any terrorist; c) entering into or facilitating a financial transaction, related to a dealing with property referred to in (b) above; d) providing financial services or any other related services, in respect of property referred to in (b) above; and e) providing funds, economic resources and financial services to Prohibited Persons (i.e. “terrorists, terrorist entities, and terrorist controlled person”). 3. Duty to Disclose 1) Every person in Singapore and any citizen of Singapore outside Singapore who has (a) possession, custody or control of any property belonging to a terrorist or a terrorist entity; or (b) information about any transaction or proposed transaction in respect of any terrorist property is required to inform the Commissioner of Police immediately – Section 8 of TSFA and Regulation 10 of the UN Regulations. 2) Every person in Singapore who has information which he knows or believes may be of material assistance (a) in preventing the commission by another person of a terrorism financing offence; or (b) in securing the apprehension, prosecution or conviction or another 224

Annex C : Guidance Notes Which Have Been Repealed 3)

person in Singapore for an offence involving the commission, preparation or instigation of a terrorism financing offence and who fails to disclose the information immediately to a police officer, shall be guilty of an offence – Section 10 of TSFA. The TSFA further provided that no criminal or civil proceedings shall lie against a person for any disclosure made in good faith under Sections 8 or 10 of the TSFA.

f. SuSPiCiouS feAtuReS AnD CiRCuMStAnCeS (“ReD fLAgS”) 1. Red flags All lawyers need to be aware that the purchase and sale of companies, businesses and properties may be used as a method of laundering the proceeds of crime, and that the services they provide may constitute or facilitate a dealing with a terrorist property. The circumstances set out in this Section F provide a basis for suspicion in the absence of adequate, satisfactory and credible explanation in response to appropriate enquiry but they do not, in and of themselves, necessarily constitute a sufficient basis to impute criminal activity on the part of the client. It simply means that further enquiry is required and where responses are not credible, or the lawyer's suspicions are not adequately dissolved by the responses, then the lawyer should not accept instructions or further instructions from the client. 2. Cash Settlements Settlement by large cash payments. 3. unusual instructions Where a client has no discernible reason for using the law firm’s service - for example, a client located in another country, where the service required could be readily obtained at the same or lower cost, and at equivalent or better standard or who requires services of the law firm, which the law firm does not hold itself out to be providing . 4. Retention or transfer of Large Sums Requests to retain large sums for a client, pending instructions in the absence of a proposed transaction on which the law firm has been engaged to act for the client or requests to serve as a conduit for the transfer of large sums of money, which is not connected with any transaction on which the law firm has been engaged to act for the client. 5. the Secretive Client A client who is reluctant to provide evidence of his identity or where the client is a corporate entity, evidence of its place of incorporation and the identity of its major shareholders and its director(s) or officer(s) who instruct the law firm on behalf of the client is not disclosed. 6. Power of Attorney Where a power of attorney is sought to be provided by the client, in favour of any person, without any apparent reason. 7. Suspect Personalities A client is a known or suspected triad member, drug trafficker or terrorist, or where the client has been introduced to the lawyer by any such persons.

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Annex C : Guidance Notes Which Have Been Repealed 8. Suspect transaction Where the transaction has no apparent commercial justification – for example, a substantial sum is being paid for an asset, which is clearly worth much less than the amount being paid for it, and there is no credible reason proffered for such transaction. g. knoW youR CLient (kyC) 1. kyC It is important for the lawyer to know the client and his business, in order to avoid inadvertently assisting or facilitating criminals or terrorists in their activities or cause, in the provision of legal services. One of the essential parts of the KYC procedure is to establish the identity of the client. The identification of the client must be carried out at the beginning, before the solicitor-client relationship is established. As a general rule, no lawyer should start work on a file before obtaining evidence of the identity of the potential client. Each law firm must adopt its own internal procedure to implement this requirement. i) Individual Clients The following information should be obtained and verified: a) full name (including all aliases); b) date of birth; c) nationality; d) identity card number or port number; e) residential address; f) occupation and identity and address of employer or, if self-employed, the name and place of business. Where the client does not meet the lawyer in person (for example, where the client instructs the lawyer from overseas), the lawyer should take appropriate precautions to ensure that the client's identity and particulars are adequately verified – fax or xerox copies of documents may be fabricated or altered. ii) Corporate Clients It is always in the interest of the lawyer to satisfy himself that the client is, in fact, an entity duly incorporated under the laws of the jurisdiction, from which it purports to have been incorporated. The lawyer should also ascertain the identity and particulars of the person, who purports to instruct him, on behalf of the corporate client, and the authority of such person to do so. Where the corporate client is not a public or listed company, it would be prudent to ascertain the identity of the principal shareholder(s) of the corporate client. iii) Partnerships The identity of the person(s) who purport to instruct the lawyer on behalf of the partnership, should be ascertained and verified as well as his/their authority to do so. If they are not partners, the lawyer should find out the identity of the partners. iv) trusts Trusts are convenient vehicles for a variety of purposes, from tax planning, to criminal

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Annex C : Guidance Notes Which Have Been Repealed concealment and money laundering. Therefore, they may be considered as “high risk”. The lawyer should ascertain the identity and particulars of the trustee, and nature of the trust, and the identity of the principal beneficiaries of the trust. Particular care and heightened scrutiny is required when dealing with off-shore trusts, which are ed in tax haven countries with strict banking secrecy laws, and jurisdictions that are “black-listed” by the Financial Action Task Force (FATF) as “Non-Co-operating Countries and Territories” (the list changes from time to time). For the latest list, please refer to http://www1. oecd.org/fatf/. The FATF is a worldwide body (consisting of 29 country , as of April 2002, including Singapore) which is responsible for the policing of money laundering activities around the world. h. CoMPLiAnCe PRoCeDuReS 1. Procedures Law firms should adopt adequate procedures which serve to prevent them from inadvertently assisting or facilitating criminals or terrorists in their activities or cause. They should also regularly monitor their staff 's compliance with these procedures. They should in appropriate situations consider whether they should decline to act for the client or proposed client. 2. Record Retention Law firms should also retain records which evidence compliance with their procedures. It would be prudent for lawyers to retain evidence of the enquiries they made, and the responses they obtained, in relation to matters on which they had suspicions, or to allay their concerns or suspicions. These would relate not only to the identity of the client or its principal shareholders, directors or officers but also to the instructions given and the transactions on which the lawyer had been instructed to act for the client. 2.

guidance note 2 of 2003: guidelines for the Appointment and Responsibilities of Assigned Counsel in Capital Cases 1. introduction 1.1 These Guidelines issued tly by the Registrar of the Supreme Court and the Council of the Law Society is to be read together with the PCR. They are intended as a guide to matters, which specifically relate to the conduct of capital cases assigned by the Registrar; Supreme Court. These Guidelines take effect from 1 April 2003. 1.2 Where a charge has been reduced from a capital charge to a non-capital charge and an assignment of Counsel has earlier been made while the charge was capital, the Registrar, Supreme Court, may, in his discretion, allow the assignment to continue for the purposes of representing the Accused person in pleading guilty to the reduced charge and mitigation. Where the Accused person intends to claim trial to the reduced non-capital charge, the assignment will not be continued. 1.3 Where a case does not warrant assigned Counsel, the Accused person will be invited to apply for legal representation under the Criminal Legal Assistance Scheme. 1.4 There shall be appointed two categories of assigned Counsel, namely (a) Leading Counsel (b) Assisting Counsel 227

Annex C : Guidance Notes Which Have Been Repealed 2 Assignment 2.1 Generally, all solicitors in practice, who have expressed their willingness to do so to the Registrar, Supreme Court may be assigned the conduct of capital cases. The assignment of Counsel may also be extended to proceedings commenced by the Public Prosecutor against the Accused person under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A, 2000 Rev. Ed. Sing), as well as assist the prisoner in filing for an Appeal and a Petition for Clemency to the President. 2.2 Where two solicitors represent (one as ‘Leading’ and the other as ‘Assisting’) an Accused person, their duties and responsibilities shall be discharged tly, whether both are assigned or briefed, or one is briefed and the other assigned. 2.3 (a)Leading Counsel are assigned by the Registrar, Supreme Court to a case from a of Leading Counsel to be maintained by the Registrar, Supreme Court. (b) To be included, in the of Leading Counsel, a Counsel should have been in practice for at least 5 years, and have been involved in at least 3 capital trials (not plead guilty cases) over that period in time. A Counsel’s previous experience from the Bench or as a Deputy Public Prosecutor/State Counsel can be taken into . 2.4 Leading counsel are to propose (subject to Registrar, Supreme Court’s approval) the name of an Assisting counsel that satisfies the criteria in paragraph 2.5 below. If the Leading Counsel does not propose his Assisting Counsel, the Registrar, Supreme Court shall assign the Assisting Counsel from the of Assisting Counsel. In order to promote mentoring between the Leading Counsel and Assisting Counsel, they should not come from the same Law Firm. 2.5 To be included in the of Assisting Counsel, a Counsel should have been in practice for at least 3 years, and have been involved in at least 3 criminal trials (not plead guilty cases) over that period in time. A Counsel’s previous experience from the Bench or as a Deputy Public Prosecutor/State Counsel can be taken into . 2.6 The Leading Counsel and Assisting Counsel shall work as a team and attend together – as far as is possible - all the meetings with the Accused person, the Deputy Public Prosecutor, and the Court proceedings, pre-trials, or Preliminary Inquiries, or otherwise. 3 Acceptance of Assignment 3.1 It shall be the duty of a solicitor when accepting any assignment from the Registrar, Supreme Court to ensure that he has sufficient ability, and a thorough, comprehensive and up-to-date knowledge of criminal law, procedure and practice, including evidential law. Once an assignment is accepted, a solicitor shall ensure that he is available to present the Accused person at all stages of the criminal proceedings. 3.2 The assignment of a Leading Counsel should be done as soon as the Accused person is charged with a capital offence, and a date for a Preliminary Inquiry has been fixed. Where there is indication from the prosecution at the very early stage that the charge could be reduced, the Registrar, Supreme Court may assign an Assisting Counsel to make representations to the Attorney General’s Chambers on behalf of the Accused person. 4 Responsibilities of Assigned Counsel 4.1 When defending an Accused person, both Leading Counsel and Assisting Counsel shall endeavour to protect the Accused person from conviction, except by a competent court and upon legally issible evidence sufficient to a conviction for the offence charged. 4.2 Assigned Counsel, with Assisting Counsel, shall: satisfy himself, if assigned to represent an Accused person or more than one Accused person, that no conflict of interest is likely to arise, and that he (or they) is (are) prepared to give

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Annex C : Guidance Notes Which Have Been Repealed diligent and effective representation at all material times to the client; carry out a series of interviews with the Accused person to obtain complete instructions before the commencement of the trial, and keep records of the same; consider whether any witnesses for the defence are required and, if so, which, and to prepare them for Trial; consider whether a Notice of Alibi is required and, if so, submit an appropriate notice within the prescribed time; consider whether it shall be appropriate to call expert evidence for the defence and, if so, notify the Registrar, Supreme Court of the need, and the likely costs, if any; consider whether any facts can be agreed with the prosecution, and properly itted in accordance with his instructions, with a view to saving time and expense at Trial; consider whether any representations ought to be made to the prosecution and, if so, to make them within reasonable time; convey to the Accused person any communication with the Prosecution, and keep records of the same; consider, evaluate and promptly convey to the client any offers of a negotiated plea and the consequences thereof, and leave any such decision to the Accused person, in writing; ensure that the Accused person is able to follow the Trial and the evidence to enable him to instruct Counsel further in areas not covered, prior to the Trial proper; ensure that the Accused person understands the consequences of a conviction; not discriminate between briefed and assigned Counsel; not further assign the case to another Counsel, unless with the expressed leave of the Registrar, Supreme Court. 5 Attendance of Counsel in Court 5.1 Both Leading and Assisting Counsel shall be present throughout the Trial or Appeal, and the Accused shall never be left unrepresented at any stage of his Trial or Appeal. 5.2 a) Where two solicitors are assigned, neither shall absent himself except for good reason and only for a short period of time, and then only with the prior permission of the Court and the consent of the Accused person; b) Should either Assigned Counsel obtain the consent of the Court and the Accused person, the other ought to be able to continue with the Trial for that short duration. 6 Appeals 6.1 Assigned Counsel shall not include any grounds of appeal in the Petition of Appeal unless he considers such grounds properly arguable. 7. Criminal Motions/Petitions of Revision 7.1 Application for Motions or Petitions of Revision should be made where it is proper to do so. 8. Remuneration 8.1 Assigned counsel will be paid an honorarium for their professional services rendered. The payment of the honorarium is from State funds and is istered by the Registrar, Supreme Court. 8.2 Claims for an honorarium are to be made on forms provided by the Supreme Court. As the honorarium claims are processed and paid on the basis of work done, Assigned Counsel are required to keep a record of time spent in Court, interviews with Accused persons and/ or relevant witness outside the Court, a description of the amount of paperwork done and 229

Annex C : Guidance Notes Which Have Been Repealed copies of submissions and skeletal arguments tendered in Court. 8.3 Assigned Counsel may seek reimbursement of expenses that have been reasonably incurred. It is however advisable for counsel to seek approval from the Registrar, Supreme Court before incurring expenses that is substantial or not normally required. 8.4 In cases where an Assigned Counsel was initially briefed by the Accused person or his family and has been paid some fees, he must declare to the Registrar, Supreme Court the amount of fees that he has been paid when submitting his claim for processing. 8.5 Assigned Counsel shall not accept any remuneration or any other form of consideration from the family or friends of the Accused person for representing the Accused person, except the honorarium made by the Registrar, Supreme Court. 9. interpreters 9.1 If the Counsel assigned and Accused person do not speak the same language, the services of an interpreter must be used and the interpreter should certify the minutes to the effect that there was no communication gap between the Counsel and Accused person. 10. Disclosure of Defence(s) 10.1 Counsel must advise the Accused person of all possible defences, which may reasonably be raised to the charges framed against him/her. If the Accused person wishes to plead guilty, despite the defences, signed instructions must be obtained and retained on file, as the Prosecution is compelled to prove its case in all capital cases even if the Accused person wishes to plead guilty. Such instructions will apply to cases on appeal when the Accused person does not wish to pursue the same. 11. non-testimonial evidence 11.1 Counsel shall ensure that the police or prosecution procedures for non-testimonial evidence (such as identification parades, photo show-ups, specimens of blood, urine and semen, and scientific tests, and the like) were conducted properly during investigations, otherwise to challenge such procedures if it is or they are material to the case for the Accused person. 12. Residual Matters 12.1 In the event of a situation not covered by these Guidelines, Counsel should act in the best interests of the Accused person, at the same time ing that his paramount obligation as an officer of the Court is to assist the Court in the istration of justice. 13. Review of Registrar 13.1 The Registrar, Supreme Court may in his discretion, remove any name from the s of Leading and Assisting Counsel. 13.2 The Council of the Law Society of Singapore may write to the Registrar, Supreme Court, requesting that a name be added or removed from the of Leading and Assigned Counsel and setting out their reasons for the said addition or removal. 13.3 If a Leading Counsel is not satisfied with the work of his Assisting Counsel or is satisfied that the Assisting Counsel is not competent, or has provided inadequate professional services, that Leading Counsel may report in writing the matter to the Registrar, Supreme Court, and request for a change of the Assisting Counsel so long as the same is done within reasonable time before the hearing of a Trial or an Appeal therefrom or for any other application. The Assisting Counsel can also inform the Registrar, Supreme Court, if the Leading Counsel has conducted the case incompetently or has provided inadequate professional services.

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Annex C : Guidance Notes Which Have Been Repealed The Registrar, Supreme Court will consider both the interests of the Accused person and the istration of justice in deciding whether to allow the change requested for. In appropriate cases, the Registrar, Supreme Court may refer the matter to the Court for a decision. 13.4 Notwithstanding paragraph 13.3, the Registrar, Supreme Court or the Court may discharge a solicitor from his assignment at any time after taking into the interests of the Accused person and the istration of justice. 13.5 The Council of The Law Society of Singapore may appoint a member to observe the trials where the Accused person is represented by an Assigned Counsel, unless the Court has ordered that the hearing be in camera.

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Annex D : Guidance Notes Which no. Practice Directions Recommended 1.

gn/1/2001 - ethics and information This guidance note takes effect from 1 October 2001 and is an attempt to provide with both technology

ethical and practice guidance on the use of IT in their This guidance note takes effect from 1 October practice. 2001 and is an attempt to provide with both ethical and practice guidance on the use of introduction The advance of technology has impacted on the IT in their practice. practice of law.

introduction

The advance of technology has impacted on the The practice of law.

Law

Society’s

Ethics

Committee

(the

Committee has reviewed the practice guidelines on ethics and IT recently issued by jurisdictions such as the United representatives of the Information Technology States, Canada and England. The

Law

Society’s

Ethics

guidelines on ethics and IT recently issued by In recognition of the ever evolving nature of jurisdictions such as the United States, Canada technology and legal practice, the guidelines, contained herewith, should not be regarded as and England. In recognition of the ever evolving nature of comments and at any time and, where technology and legal practice, the guidelines, contained herewith, should not be regarded as concerns raised. invites comments and at any time and, This guidance note covers the following topics: to meet concerns raised. This guidance note covers the following topics:

iv. online referral and introduction schemes.

general iv. online referral and introduction schemes.

general

are reminded that when considering these guidelines, they must have reference to the current editions of the Act, the PCR, the PR, SAR and the Practice Directions of the Council.

are reminded that when considering these guidelines, they must have reference to are also advised to be aware of the laws the current editions of the Act, the PCR, the PR, against software piracy and not use, in their practices, any unlicensed software. the Practice Directions of the Council. are also advised to be aware of the law corporation. laws against software piracy and not use, in their e-mail practices, any unlicensed software. Electronic mail is a communications system. It is particularly suitable for short communications and for the sending of documents that can be printed by e-mail the recipient. Electronic mail is a communications system. It must comply with any relevant directions is particularly suitable for short communications of the Council about correspondence with regard to and for the sending of documents that can be the use of e-mail. In particular, e-mails should not printed by the recipient. in its correspondence. E-mails should identify the a law corporation.

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must comply with any relevant directions of the Council about correspondence with regard to the use of e-mail. In particular, and this guidance note. e-mails should not contain particulars that a Under r. 8 of the PCR, a lawyer must ‘exercise proper E-mails should identify the sender and his supervision over his employees and other staff. The proper supervision of all staff over the use of e-mail in their practice. the PCR and this guidance note.

is used as a communication system that the system is Under r. 8 of the PCR, a lawyer must ‘exercise checked regularly for incoming e-mail and e-mails proper supervision over his employees and other are distributed promptly to recipients. There should should ensure the proper supervision of all staff over the use of e-mail in their practice. day or more. It is also recommended that a record of all outgoing e-mail is used as a communication system that the system is checked regularly for incoming e-mail and e-mails are distributed promptly to electronic means. Finally, it is also recommended recipients. There should be an automated out- that, as a matter of courtesy to a fellow lawyer, important or urgent messages, notices or documents It is also recommended that a record of all outgoing and incoming e-mails sent under a

their dispatch.

and receiving of private e-mail, giving legal advice or opinions via e-mail, sending privileged documents also recommended that, as a matter of courtesy via e-mail and adequate supervision for incoming to a fellow lawyer, important or urgent messages, and outgoing e-mail. notices or documents are not sent by e-mail As e-mails can transmit viruses to or from a law and maintain anti-virus software to ward against such sending and receiving of private e-mail, giving risks. legal advice or opinions via e-mail, sending privileged documents via e-mail and adequate supervision for incoming and outgoing e-mail. Under r. 24 of the PCR, a lawyer must not disclose As e-mails can transmit viruses to or from a law of the retainer or contents of documents recording install and maintain anti-virus software to ward clients’ instructions. Therefore, care must be taken to against such risks. protected. Under r. 24 of the PCR, a lawyer must not e-mail. It is an insecure medium that may be subject to possible interception by hacking or inadvertent a result of the retainer or contents of documents disclosure. recording clients’ instructions. Therefore, care must be taken to ensure e-mail containing encrypted e-mail or secured lines.

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e-mail. It is an insecure medium that may be the secured nature of communication via e-mail, subject to possible interception by hacking or inadvertent disclosure. consent of his client on the use of e-mail as a means of communication.

use of encrypted e-mail or secured lines. the secured nature of communication via e-mail, consent of his client on the use of e-mail as a means of communication.

nature of the e-mail message. It is recommended that the warning be attached to all mail sent so that the whether to include the warning in each email sent. e-mail guidance note is as follows:

may be legally privileged. It is intended solely for practice to warn unintended recipients of the the person to whom it is addressed. If you are not the intended recipient, please notify the sender, and recommended that the warning be attached to please delete the message and any other record of it from your system immediately. the burden of considering whether to include the warning in each email sent. Giving professional undertakings via e-mail

England’s e-mail guidance note is as follows:

via e-mail, it may not be apparent on the face of the e-mail if the purported sender sent the undertaking.

accepting a professional undertaking via e-mail and may be legally privileged. It is intended solely to take steps to that the purported sender had in for the person to whom it is addressed. If you fact sent the undertaking given via e-mail. are not the intended recipient, please notify the sender, and please delete the message and any Practising Law on the internet other record of it from your system immediately. The current Act (2009 Rev thereunder do not prohibit a lawyer practising law via Giving professional undertakings via e-mail undertaking via e-mail, it may not be apparent on the face of the e-mail if the purported sender sent practising lawyer to declare the ‘principal and any other address or addresses at which he practises in the undertaking. Singapore’. This information is recorded under s. when accepting a professional undertaking maintained by the Registrar of the Supreme Court via e-mail and to take steps to that the and the Council of the Law Society. purported sender had in fact sent the undertaking Given the of s. 25(1)(a)(iv) of the Act, law given via e-mail. may meet their lawyers and where mail and telephone is not allowed.

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Practising Law on the Internet thereunder do not prohibit a lawyer practising website.

The PCR do not require you to meet your clients ‘face not meet its client. It is advisable and, at times, may

their client’s identity and their legal capacity. practising lawyer to declare the ‘principal and any other address or addresses at which he practises In the case of taking instructions from an agent, there in Singapore’. This information is recorded is an obligation under r. 23 of the PCR for the lawyer to ensure there is evidence of the agent’s authority of practitioners maintained by the Registrar of to act on behalf of the client. In the absence of any the Supreme Court and the Council of the Law evidence, the rule requires the lawyer must ‘within a Society. the client’. have a place of business at which clients may Client care meet their lawyers and where mail and telephone The requirements of the PCR on the standards of adequate professional service apply when lawyers entirely online is not allowed. conduct their clients’ businesses on the internet. Accordingly the clients must receive adequate information on costs, progress of the case, e-mails must, with reasonable dispatch, be responded to and The PCR do not require you to meet your clients proposals of settlement and positions taken by other parties explained in a clear manner. give online advice, there is a possibility that the

Payment of Legal fees by Credit Card

takes necessary steps to their client’s identity and their legal capacity.

The Council has approved the use of credit cards for

In the case of taking instructions from an agent, there is an obligation under r. 23 of the PCR for the lawyer to ensure there is evidence of the that payment of service charge is not deducted from agent’s authority to act on behalf of the client. In the absence of any evidence, the rule requires the be no sharing of fees with an unauthorised person. lawyer must ‘within a reasonable time thereof, Please refer to the Council’s Practice Direction on the use of credit cards.

Publicity and s 33 of the Act

Client care The requirements of the PCR on the standards of adequate professional service apply when lawyers conduct their clients’ businesses on the internet. Accordingly the clients must receive adequate information on costs, progress of the case, e-mails must, with reasonable dispatch, be responded to and proposals of settlement and positions taken by other parties explained in a clear manner.

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Under the PR, publicity conducted through the internet is subject to the rules that govern publicity in Singapore. tool or to provide generic legal information that can be accessed by the general public or clients of the realise that it could give rise to attendant obligations consider appropriate disclaimers.


Payment of Legal fees by Credit Card

Given the further liberalisation of the PR, with the

The Council has approved the use of credit cards

website can be hyperlinked to a client’s or third party’s website, subject to the general principles with the Practice Direction of the Council. The described in rr. 6 and 7 of the PR. If legal advice is given or a document is prepared and of service charge is not deducted from the law be aware of the of s. 33 of the Act. Authorised sharing of fees with an unauthorised person. Please refer to the Council’s Practice Direction client requested you to prepare a letter of demand threatening legal proceedings for a debt owed and on the use of credit cards. requested the same be dispatched to them via e-mail to enable them to forward the same to the debtor via Publicity and s 33 of the Act Under the PR, publicity conducted through e-mail, you should refuse to do so. the internet is subject to the rules that govern online Referral and introduction Schemes publicity in Singapore. Under the Act, it is an offence if a lawyer has ‘tendered or given or consented to retention, out of any fee tool or to provide generic legal information that can be accessed by the general public or clients for having procured the employment in any legal must realise that it could give rise to attendant (d employment of himself or any person to whom any remuneration for obtaining such employment had to, therefore, consider appropriate disclaimers. been given by him or agreed or promised to be so e Given the further liberalisation of the PR, with the amendment of r. 9 on 1 September 2001, a or third party’s website, subject to the general any person for referring work to them. The participation in any internet referral schemes which principles described in rr. 6 and 7 of the PR. If legal advice is given or a document is prepared for legal services referred would be a breach of the Act. must be aware of the of s. 33 of the Act. Even if no fees are paid or shared, any participation in an online introduction service or referral service example, if your client requested you to prepare carried out in such a way as to ‘unfairly attract work’ a letter of demand threatening legal proceedings for a debt owed and requested the same be dispatched to them via e-mail to enable them to forward the same to the debtor via e-mail, you The Council has also ruled that it is improper for a should refuse to do so. ruled that this would be tantamount to “brokering”.

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online Referral and introduction Schemes

Under the Act, it is an offence if a lawyer has ‘tendered or given or consented to retention, out of any fee payable to him for his services, of any in any legal business of himself or any other indirectly, procured the employment of himself or any person to whom any remuneration for obtaining such employment had been given by him or agreed or promised to be so given’ (s.

rewarding any person for referring work to them. The participation in any internet referral schemes fees paid for legal services referred would be a breach of the Act. Even if no fees are paid or shared, any participation in an online introduction service or referral service carried out in such a way as to

The Council has also ruled that it is improper for Council has ruled that this would be tantamount to “brokering”. 2.

gn 2 of 2009 - Replacement on Roll of This Guidance Note takes effect on 20 November 2009. Solicitor who has been Struck off This Guidance Note takes effect on 20 November 2009.

name of a solicitor who has been removed from, or struck off, the roll. the roll the name of a solicitor who has been removed from, or struck off, the roll.

the procedure to be complied with for an application for replacement on the roll. The application is to for the procedure to be complied with for an be made by originating summons ed by an application for replacement on the roll. The application is to be made by originating summons the Society who shall appear before the hearing and place before the court a report which shall include summons is to be served on the Society who shall copies of the record of the proceedings leading to the appear before the hearing and place before the solicitor being struck off the roll and a statement of court a report which shall include copies of the the facts that have occurred since the solicitor was record of the proceedings leading to the solicitor removed/struck off the roll which in the opinion of being struck off the roll and statement of the Council or any member of the Council are relevant facts that have occurred since the solicitor was to be considered or to be investigated in connection removed/struck off the roll which in the opinion with the application. of Council or any member of the Council are relevant to be considered or to be investigated in connection with the application. 237


information that needs to be disclosed by the applicant for the purpose of the application and in order for the court to determine if he is fully rehabilitated to practice and should be replaced on the roll as a matter of public interest and This has led the Court in Kalpanath Singh s/o Ram , [2009] SGHC 190, to observe that it was good practice to make full disclosure of all relevant information in all future applications for replacement on the roll. This was to remind the applicant of the need to furnish all relevant information in his/her application.

that needs to be disclosed by the applicant for the purpose of the application and in order for the court to determine if he is fully rehabilitated to practice and should be replaced on the roll as a matter of public This has led the Court in Kalpanath Singh s/o Ram , [2009] 4 make full disclosure of all relevant information in all future applications for replacement on the roll. This was to remind the applicant of the need to furnish all relevant information in his/her application. The Council of the Law Society in consultation with the Attorney-General, sets out in Paragraph 7 below the information that ought to be disclosed in an

The Council of the Law Society in consultation with the Attorney-General, sets out in Paragraph on the roll under section 102 of the Act. This is to bring 7 below the information that ought to be disclosed to the attention of the Court information pertaining to replacement on the roll under section 102 of the Act. the Act. This is to bring to the attention of the Court information pertaining to the grounds for other things, disclosure of the following: other things, disclosure of the following:

7.1 if there was/were any pending disciplinary or

7.1 if there was/were any pending disciplinary jurisdiction at the time of the removal/striking off and applicant in any jurisdiction at the time of the including but not limited to any conviction or 7.2 if there was/were any subsequent disciplinary

7.2 if there was/were any subsequent disciplinary or jurisdiction after the removal/striking off and the

applicant in any jurisdiction after the removal/ 7.3 if the applicant is an undischarged bankrupt in but not limited to any conviction or sentence to 7.3 if the applicant is an undischarged bankrupt

7.4 if the applicant has entered into a composition with his/her creditors or a deed of arrangement for

7.5 if the applicant has one or more outstanding 7.4 if the applicant has entered into a composition judgments against him/her in any jurisdiction with his/her creditors or a deed of arrangement for amounting in the aggregate to $100,000 or more which he/she has been unable to satisfy within 6 and 7.5 if the applicant has one or more outstanding 7.6 if the applicant has been found under section 7 judgments against him/her in any jurisdiction of the Mental Disorders and Treatment Act (Cap 178, amounting in the aggregate to $100,000 or more 1985 Rev. Ed. Sing which he/she has been unable to satisfy within 6

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Annex D : Guidance Notes Which no. 2.

Practice Directions Recommended and 7.6 if the applicant has been found under section 7 of the Mental Disorders and Treatment Act

including the Mental Capacity Act 2008 (Cap. 177A, 2010 Rev. Ed. Sing incapable of managing himself/herself and/or his/her

including the Mental Capacity Act 2008 (Act 2 of practice and rehabilitation are known to the applicant and

7.8 if the applicant is incapacitated by illness or accident or physical or mental condition which 7.7 if the referees opining to the applicant’s is relevant to his/her capacity to attend to his /her 7.9 the period that has transpired between the date 7.8 if the applicant is incapacitated by illness or the applicant ceased practice to the date of the accident or physical or mental condition which is application. relevant to his/her capacity to attend to his /her 7.10 if the applicant’s right to practice in any 7.9 the period that has transpired between the date the applicant ceased practice to the date of the application. 7.10 if the applicant’s right to practice in any

3.

gn/1/2010 - Application for Practising This Guidance Note takes effect on 1 February 2010. Applies

This Guidance Note sets out the procedure to be

This Guidance Note takes effect on 1 February when section 25A of the Act applies. 2010. This Guidance Note sets out the procedure to be followed in an application for a practising “This section shall apply to any solicitor – Whose suspension from practice has expired; Who has been discharged from bankruptcy;

“This section shall apply to any solicitor – Whose suspension from practice has expired; Who has been discharged from bankruptcy;

Who has been sentenced to a term of imprisonment in any civil or criminal proceedings in Singapore or elsewhere;

Who has been sentenced to a term of imprisonment Who has been convicted of an offence involving in any civil or criminal proceedings in Singapore dishonesty or fraud; or elsewhere; Who has been convicted of an offence in relation to Who has been convicted of an offence involving his conduct in his practice of law; dishonesty or fraud; Who has been found guilty of misconduct in any other Who has been convicted of an offence in relation professional capacity; to his conduct in his practice of law; 239

Annex D : Guidance Notes Which no.

Practice Directions Recommended

3.

Who has been found guilty of misconduct in any section 25C to be impaired by reason of his physical other professional capacity; or mental condition, or who, having been ordered by a Judge to submit to a medical examination under under section 25C to be impaired by reason of section 25C to be conducted within such period as his physical or mental condition, or who, having the Judge may specify in the order, fails to do so; been ordered by a Judge to submit to a medical examination under section 25C to be conducted Whom the Attorney-General or the Council is within such period as the Judge may specify in the solicitor’s physical or mental condition, to such the order, fails to do so; Whom the Attorney-General or the Council is

Whom the Attorney-General or the Council is

made under section 72”. or by the solicitor’s physical or mental condition, to such extent as to be unable to attend to his Where a solicitor to whom section 25A of the Act practice; or applies, makes an application for a practising Whom the Attorney-General or the Council is General or the Council may request the Registrar, rules made under section 72”. Where a solicitor to whom section 25A of the conditions as the Attorney-General or the Council Act applies, makes an application for a practising may specify. Attorney-General or the Council may request the A practice year is the period from 1st April in any calendar tear to 31st March in the next ensuing calendar year. Pursuant to rule 3 of the Legal (Cap. subject to such conditions as the Attorney- 161, R 6, 2010 Rev. Ed. Sing), an application for a General or the Council may specify. be submitted only from 1st March (preceding that A practice year is the period from 1st April in any calendar tear to 31st March in the next ensuing calendar year. Pursuant to rule 3 of the Legal , an of a practice year may be submitted only from 1st to the Society must be accompanied by payment of the annual subscription and contribution to the

When section 25A of the Act applies, the Council will, upon receipt of the application for approval to

submitted to the Society must be accompanied by payment of the annual subscription and contribution to the Compensation Fund, and the The Society will write to the Attorney-General’s Chambers to enquire if they intend to make an

The Society will subsequently write to inform the Registrar whether the Council or the AttorneyGeneral’s Chambers will be making an application

written to inform the Registrar of the position of the Council and the Attorney-General’s Chambers. 240


When section 25A of the Act applies, the Council will, upon receipt of the application for

of the practice year, a solicitor to whom section application to the Registrar pursuant to section 25A of the Act applies, is to submit to the Society a ‘Notice of Intention to Apply for a Practising Attorney-General’s Chambers to enquire if they intend to make an application pursuant to section write to inform the Registrar whether the Council the ‘Notice of Intention to Apply for a Practising or the Attorney-General’s Chambers will be can be assessed from the Law Society’s website at http://www.lawsociety.org.sg/ the Act. The solicitor concerned may proceed to for/ResourceCentre/RunningYourPractice/ only after the Society has written to inform the aspx. Registrar of the position of the Council and the Attorney-General’s Chambers. The solicitor concerned will still be required to submit to the Society, from 1st March (preceding the of the practice year, a solicitor to whom section of the ‘Notice of Intention to Apply for a Practising 25A of the Act applies, is to submit to the Society a ‘Notice of Intention to Apply for a Practising write to the Attorney-General’s Chambers to enquire if they intend to make an application pursuant to the ‘Notice of Intention to Apply for a Practising The solicitor concerned will still be required to submit to the Society, from 1st March (preceding upon receipt of the ‘Notice of Intention to Apply Act and the Society will write to the AttorneyGeneral’s Chambers to enquire if they intend to of the Act.

241

39 South Bridge Road Singapore 058673 T: +65 6538 2500 F: +65 6533 5700 www.lawsociety.org.sg

242

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