|
NOTICES |
| Disciplinary Committee Reports |
Pursuant to s 93(5) of the Legal Profession Act, the Council of the Law Society is required to publish the findings and determination of the Disciplinary Committee in the Singapore Law Gazette or in such other media as the Council may determine to adequately inform the public of the same.
This summary is published pursuant to the requirement of s 93(5) of the Legal Profession Act.
Findings and Determination of the Disciplinary Committee
In the Matter of Surinder Singh Dhillon and “S” Advocates & Solicitors
Both respondents were practising together as partners and the proceedings against them arose from a complaint which alleged that the duo had breached r 30 and r 31 of the Legal Profession (Professional Conduct) Rules in which Surinder Singh Dhllion (“SSD”) advised one Henry Lee Chee Keong (“Henry Lee”) whilst his partner “S” advised the complainant. At the onset of the proceedings, Counsel for the Law Society entered the following charges of misconduct against the duo.
Amended First Charge Against SSD
You, Surinder Singh Dhillon , are charged that you, between 20 November 2006 and 23 July 2008, whilst practising as an advocate and solicitor in the firm of Messrs Dhillon & Partners together with “S”, did advise parties with opposing interests in breach of r 30 of the Legal Profession (Professional Conduct) Rules, to wit, you acted for one Henry Lee Chee Keong whilst “S” acted for one Lo Poey Kee, Mr Lee and Mdm Lo having opposing interests and you have thereby committed misconduct unbefitting an advocate and solicitor within the meaning of
s 83(2)(h) of the Legal Profession Act.
Second Charge Against SSD
You, Surinder Singh Dhillon , are charged that you, between 20 November 2006 and 23 July 2008, whilst practising as an advocate and solicitor in the firm of Messrs Dhillon & Partners together with “S”, did act against your client, one Lo Poey Kee in a matter related to that in which you acted for her in breach of r 31 of the Legal Profession (Professional Conduct) Rules, to wit, you acted for one Henry Lee Chee Keong whilst “S” acted for one Lo Poey Kee, and you have thereby committed grossly improper conduct in the discharge of your professional duty within the meaning of s 83(2)(b) of the Legal Profession Act.
The charges against “S” were the exact reverse of the charges preferred against SSD in their construction and structure.
Findings of the Disciplinary Tribunal
From the onset of the hearing, SSD contends that prior to 16 July 2008, he was merely giving “advice” to Henry Lee and was only on his retainer from 16 July 2008 to 23 July 2008. As for “S”, he contends that prior to the evening of 18 July 2008, he was unaware that SSD had been approached by Henry Lee to act for him in relation to his drink driving charge. In the circumstances, the case against the duo rested on “S” having actual knowledge that SSD was “advising” Henry Lee in breach of r 30 or that SSD was “acting against” the complainant in breach of r 31 and that such knowledge was a sine qua non of liability for misconduct.
In arriving at their determination, the Disciplinary Tribunal took great pains to set out the policies behind the rules governing “conflict of interest” by a meticulous review of case authorities as well as considering the practical aspects of the matter through a judicious examination of the factual matrix, submissions and evidence tendered by the respondents and Counsel for the Society. The Disciplinary Tribunal noted that there was indeed a clear overlap of retainers when Messrs Dhillon & Partners acted for Henry Lee from 16 July 2008 till 18 July 2008 and indeed the events which transpired during the period indicated that SSD was indeed rendering advice to Henry Lee as his client to advance and/or safeguard his interest and in the circumstances both charges against SSD were made out. In this respect, the Disciplinary Tribunal cautioned against dissecting the factual matrix to derive the extent of a conflict and its consequences thereof, in particular, it would do well to argue that there was no direct conflict since SSD was representing Henry Lee in making a plea of guilt in the criminal matter and “S” was representing the complainant in her civil claim against Henry Lee. Further, it would then be the case that “S” was acting against Henry Lee since he was a potential defendant in the civil matter. However, as the obligation under r 31 is not commutative, a charge that SSD (by imputation) acted against Henry Lee because “S” was acting for the complainant is vastly different from the actual charge being preferred, that of SSD having acted against the Complainant (by imputation) because SSD was acting for Henry Lee.
At the end of the proceedings, the Disciplinary Tribunal concluded that the extent of the breaches by SSD did not cause any prejudice to the complainant’s legal interest. The advice given on 9 June 2008 by SSD within the meaning of
r 30 was absolute, innocuous and of no conceivable prejudice to the complainant’s interest. The only event that occurred during SSD’s representation of Henry Lee was an adjournment by the Prosecution to consider whether additional charges should be preferred. The Disciplinary Tribunal, therefore, finds that the gravity of misconduct by SSD at the lowest end of the scale and that no cause of sufficient gravity exists as against SSD for disciplinary action under s 83 of the Act although he ought to be reprimanded pursuant to s 93(1)(b) of the Act.
As for “S”, the Disciplinary Tribunal accepted his evidence that the earliest he knew of SSD’s representation of Henry Lee was on 18 July 2008 and this finding itself was sufficient to dispose of the charges against “S”.
Council’s Decision
Council accepted the findings and determination of the Disciplinary Committee and thereafter published a reprimand against SSD in the Government Gazette pursuant to s 88(4) of the Act.
In the Matter of Zulkifli Bin Mohd Amin, Mohd Sadique Bin Ibrahim Marican and AK Advocates & Solicitors
All the respondents were partners of Messrs Sadique Marican & Z M Amin (the “Firm”). On or around 22 November 2007, Mohd Sadique Bin Ibrahim Marican (“SM”) and AK sought a meeting with the Law Society whereupon they informed the Society that their partner, Zulkifli Bin Mohd Amin (“ZA”) had gone missing and that they suspected him of misappropriating monies from both the client’s account and the office account as both accounts had been overdrawn. The duo had also earlier reported the matter to the Police.
Pursuant to r 12 of the Legal Profession (Solicitors’ Accounts) Rules (the “SAR”) inspection, the interim report by the auditors found among other points, that:
1. there were no bank reconciliation statements after July 2007, the identity of the person who prepared the bank reconciliations was not stated and there were no notation or statement to the effect that the bank reconciliations were reviewed by any of the partners of the Firm;
2. the Firm had been issuing “cash cheques” subsequent to 15 May 2007 although the SAR prohibits the issuing of “cash cheques” after 15 May 2007. Further, the accounting records of the Firm had not been written up for the 2007 financial year;
3. the balance in the client’s account as at 22 November 2007 was $6,419.85 and as a result of which cheques presented were dishonoured by the bank;
4. total withdrawals from the office bank account, in the form of cash cheques/ATM withdrawals/NETS payments/fund transfer during the period amounted to $7,538,583.90;
5. cash cheques amounting to $5,660,357.02 were issued from the Office account during the period and the authenticity of these cheques was not verifiable. In a few instances the payment voucher indicated the payee as “Cash-Zul” and the particulars were “personal drawings”; and
6. there were transfers to two different account numbers for the sum of $813,000 and $10,800 for which there were no supporting documents to verify the authenticity of the payments.
Pursuant to s 85(2) of the Legal Profession Act (the “Act”), Council on 3 June 2008 notified ZA, SM and AK that information touching upon their conduct as advocates and solicitors had been referred to the Chairman of the Inquiry Panel. On or about 2 July 2009, the Inquiry Committee in its Report recommended to Council that the information touching upon the conduct of ZA, SM and AK required a formal investigation by a Disciplinary Tribunal. Having considered the Report of the Inquiry Committee, the Council pursuant to s 87(1) of the Act determined that there should be a formal investigation by a Disciplinary Tribunal, and, pursuant to s 89(1) of the Act, applied to the Honourable the Chief Justice to appoint a Disciplinary Tribunal to hear and investigate the matter.
Charges Against ZA
A total of 211 charges were preferred against ZA. The first 208 charges against him were in respect of unauthorised withdrawals of funds from the Firm’s client’s account contrary to r 7(1)(a) of the SAR. Of these withdrawals, 203 were withdrawals made by way of transfers from the client’s account to the office account, one was a withdrawal made to an account bearing the number 109-310-121-4, and four were made by way of cash cheques. The withdrawals were carried out over the period from January to October 2007. The total amount of withdrawals by way of transfers was $10,663,094.40 and the total amount of withdrawals by way of cash cheques was $178,402.37.
ZA was absent from the proceedings and was not represented by Counsel.
Charges Against SM and AK
That you, [SM] / [AK], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that, for the months of August, September and October 2007, you, as a Partner of [the Firm], failed to cause the balance shown in the clients’ cash books of the Firm to be reconciled with the monthly bank statements of the Firm’s client account and failed to keep in a cash book or other appropriate place a statement showing the reconciliation and you have thereby breached r 11(4) of the Legal Profession (Solicitors Accounts) Rules and such breach of the said Rules amounts to grossly improper conduct within the meaning of s 83(2)(b) of the Legal Profession Act (Chapter 161).
That you, [SM] / [AK], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that, for the months of August, September and October 2007, you, as a Partner of [the Firm], failed to cause the balance shown in the clients’ cash books of the Firm to be reconciled with the monthly bank statements of the Firm’s client account and failed to keep in a cash book or other appropriate place a statement showing the reconciliation and you have thereby breached r 11(4) of the Legal Profession (Solicitors Accounts) Rules and such breach of the said Rules amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Chapter 161).
That you, [SM] / [AK], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that, from the 3rd January 2007 to the 20th November 2007, you, as a Partner in [the Firm] failed to be caused to be recorded in any ledger required to be maintained under rr 11(1) and (2) of the Legal Profession (Solicitors’ Accounts) Rules all transactions with respect to the client account of the Firm and you have thereby breached the said Rules and such breach of the said Rules amounts to grossly improper conduct within the meaning of s 83(2)(b) of the Legal Profession Act (Chapter 161).
That you, [SM] / [AK], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that, form the 3 January 2007 to the 20 November 2007, you, as a Partner in [the Firm] failed to be caused to be recorded in any ledger required to be maintained under rr 11(1) and (2) of the Legal Profession (Solicitors’ Accounts) Rules all transactions with respect to the client account of the Firm and you have thereby breached the said Rules and such breach of the said Rules amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Chapter 161).
On 18 September 2009, the Council resolved pursuant to
s 87(2)(a) of the Act that there should be a formal investigation by a Disciplinary Tribunal to hear and investigate the conduct of SM and AK in relation to an additional charge against each of them concerning the supervision of transactions involving clients’ monie. Accordingly, on 15 October 2009, the Council wrote to the Chief Justice requesting that the matter concerning the additional charge be heard together with the two charges against them currently pending before the Disciplinary Tribunal. The Chief Justice, pursuant to s 89(3) of the Act, directed that the additional charge be heard by the Disciplinary Tribunal at the hearing of the other two charges.
The additional charge (the “third charge”) against each of them is also substantially the same, mutatis mutandis and it is as follows:
That you, [SM]/ [AK], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that, between 3rd January 2007 and 20th November 2007, as a Partner of [the firm], in breach of your duty as a co-signatory of the Firm’s client’ account, failed to adequately supervise transactions involving client’s monies in the Firm’s client’s account and failed to safeguard clients’ monies in the Firm’s client’s account such that unauthorized transactions were made from the Firm’s client’s account and such breach amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act (Chapter 161).
Findings of the Disciplinary Tribunal
Based on evidence adduced from documents and records of the firms as well as the testimonial from the auditors, the Disciplinary Tribunal found ZA guilty of the 208 charges preferred against him for unauthorised withdrawals in breach of r 7(1)(a) of the SAR. The Disciplinary Tribunal also found him guilty of the remaining charges.
Other than the first charge against SM and AK for their alleged failure to reconcile the monthly bank statements of the firm’s client’s accounts in breach of r 11(4) of the SAR, the Disciplinary Tribunal found the duo guilty of the remaining two charges. In relation to the second charge, the Disciplinary Tribunal could not accept the duo’s version of events whereby they invited the Disciplinary Tribunal to infer that there was a ledger which ZA had taken away. In particular, the 208 instance of unauthorised dealings by ZA with client’s moneys speaks volumes for the absence of any proper record of the dealings with client’s moneys entrusted to the firm.
On the third charge against the duo on their alleged failure to safeguard and supervise client’s monies, they contended that they had no case to answer since they had no opportunity to act as co-signatories given that ZA caused monies to be withdrawn from the account by forging signatures on cheques and transfer forms. The Disciplinary Tribunal rejected their submission which rests on the premise that fraud by a co-signatory absolves the other signatories. Partners in a law firm have a duty to safeguard client’s monies placed with the firm. A co-signatory to a client’s account will have a higher duty which goes beyond exercising care when signing cheques drawn on the account and having access to the statements of account, he or she can monitor movements within that account. The remaining issue to be resolved was whether SM and AK each had personal culpability for what transpired between January and November 2007.
The Disciplinary Tribunal could not help to note that there was a lack of consciousness on the part of SM and AK as to the running of the firm. They were patently unaware of what transpired when the staff who was in charge of keeping the books and accounts left their employment and that ZA had been very much left to his own devices. The duo had therefore allowed ZA to operate the firm as if he was a sole-proprietor. This in the Disciplinary Tribunal’s view constituted a cavalier and complacent attitude to the state of affairs and a reprehensible if not unacceptable indifference to the probability of a breach of the SAR.
Accordingly, the Disciplinary Tribunal determined and found as follows:
that in respect ZA, cause of sufficient gravity for disciplinary action exists under Section 83 of the Act in respect of the 211 charges;
that in respect of each of them, namely: SM and AK, with respect to the first charge, cause of sufficient gravity for disciplinary action exists under Section 83 of the Act in respect of the failure in preparing the reconciliation statement for the month of October 2007.
that in respect of SM and AK respectively cause of sufficient gravity for disciplinary action exists under Section 83 of the Act in respect of the second charge and the third charge.
SM and AK to pay costs to the Society.
Council’s Decision
Council accepted the findings and determination of the Disciplinary Tribunal and thereafter made the requisite application for the Respondents to “show cause” before the Court of Three Judges pursuant to s 98 of the Act.
The Court of Three Judges
The Court of Three Judges directed the Law Society to make application for another matter involving ZA to be heard with this matter (please refer the February 2011 issue of the Singapore Law Gazette). Again, ZA did not avail himself before Chan Sek Keong CJ, Chao Hick Tin JA and Andrew Phang Boon Leong JA on 6 August 2010 and having considered the merits of the determination of both Disciplinary Tribunals against ZA, the Court of Three Judges ordered him to be struck off the Roll of Advocate and Solicitors. Accordingly, SM was also struck off the Roll of Advocates and Solicitors for the breaches of the SAR and his failure to supervise and safeguard client’s monies. In terms of AK, the Court of Three Judges found that he could not be responsible for the breaches of the SAR and the supervision and safeguard of client’s monies as he was only a salaried partner rather than an equity partner. Accordingly, he was acquitted of the charges preferred against him.