High Court found no implied retainer between LKY and Lee Suet Fern, contrary to DT findings

High Court found no implied retainer between LKY and Lee Suet Fern, contrary to DT findings

The Court of Three Judges (COTJ) on Friday (20 November) ordered the suspension of senior lawyer Lee Suet Fern from legal practice for 15 months. The decision cannot be appealed.

The court issued its judgment in relation to the alleged conflict of interest present in her involvement with founding prime minister and her father-in-law Lee Kuan Yew’s last will on 17 December 2013.

The COTJ consists of Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and High Court judge Woo Bih Li.

In a statement to the media, Mrs Lee said that she disagrees with the COTJ decision, noting that there was no basis for the case to have even been initiated. She added, “The Court of Three found ‘no solicitor-client relationship existed’ between Lee Kuan Yew and myself. The Court found there was no dishonesty in my dealings with Lee Kuan Yew and there was no finding that the will was procured by fraud or undue influence.”

Now, looking at the judgment, there are several instances where the COTJ’s findings differed from the disciplinary tribunal which found Mrs Lee guilty of charges brought against her following a complaint filed by the Attorney-General’s Chambers (AGC).

The COTJ specifically stated: “Having considered the parties’ submissions, and having reviewed the DT’s GD, we differ from certain findings made by the DT. In particular, for the reasons set out in this judgment, we consider that the Respondent did not receive instructions or directions directly from her putative client. We also do not find that there was an implied retainer between the Respondent and her putative client.”

Though it added, “Nonetheless, we agree with the DT that the Respondent is guilty of misconduct unbefitting an advocate and solicitor.”

LKY did not give express direct instructions to Lee Suet Fern on reverting to earlier will

One of the differences between the COTJ’s judgment and the findings of the DT is that Mrs Lee did not receive direct instructions about the will from LKY himself.

Chief Justice Sundaresh Menon who delivered the judgment noted in, “The DT concluded that the first explanation – namely, that the Testator (Lee Kuan Yew) had given express instructions directly to the Respondent (Lee Suet Fern) to revert to the First Will – was true. While we understand the DT’s reasons for coming to this view, on balance, we do not agree with the DT on this finding.”

The Justice Menon said that the COTJ finds that “it would have been it would have been extremely odd for the Testator to have contacted the Respondent directly about changing his then will, which was the Sixth Will” given that LKY has been communicating to his regular solicitor, Ms Kwa Kim Li—who had executed all his previous wills—about changes he wanted to make to his Sixth Will.

The judgment later noted that it accepted the explanation that LKY had not spoken to Mrs Lee directly about his intention to revert to the first will but instead, it had been communicated to his son Lee Hsien Yang who had then involved his wife “in limited ways.”

“In other words, we find that the Respondent learnt of the relevant instructions to revert to the First Will from Mr LHY, and not directly from the Testator, and that the account of events presented to the MC (ministers of cabinet) was incorrect,” the judgment added.

No implied retainer

Additionally, the COTJ held that there was no implied retainer between LKY and Mrs Lee. This is also in opposition to the findings of the DT.

The Chief Justice said in the judgment, “While we accept that the Respondent should objectively have appreciated that she was acting as the Testator’s solicitor for the preparation and execution of the Last Will, we are not satisfied that the same can be said of the Testator. Hence, we hold that no implied retainer arose from the Testator’s perspective.

“In the circumstances, we respectfully disagree with the DT that an implied retainer can be imputed to both the putative solicitor and the putative client, such that a solicitor-client relationship arose between the Respondent and the Testator.”

In its judgment, the COTJ said that it considered the harm caused in this case to be at the “lower end of the moderate range”, reasoning that the actual harm was in the final will not being the exact document that LKY indicated he wished to sign, though he was content with the final fill after signing it.

It added, “As against this, we take into consideration the fact that while the Testator had previously changed his wills several times, after the Last Will was signed, he was content with it. He lived for more than a year after executing it.”

Case background

Following a complaint filed by the Attorney-General’s Chamber (AGC) to the Law Society of Singapore on 4 December 2018, charges of misconduct were brought against Mrs Lee based on that complaint. As mandated by law, the Chief Justice appointed a disciplinary tribunal to hear the charges against the lawyer.

The charges brought against Mrs Lee by the Law Society relate to her involvement in the execution of her father-in-law Lee Kuan Yew’s final will sight on 17 December 2013.

In a 500-page complaint released in early 2019, the AGC had referred a case of “possible professional misconduct” case on the part of Mrs Lee, who is formerly a managing partner at law firm Morgan Lewis Stamford, to the Law Society.

AGC stated: “Ms Lee appears to have prepared the Last Will of Mr Lee Kuan Yew and arranged for Mr Lee Kuan Yew to execute it, despite the fact that her husband, Mr Lee Hsien Yang, is one of the beneficiaries under the Last Will”, and that his “share increased under the Last Will”.

Citing the Legal Profession (Professional Conduct) Rules, AGC alleged that “(Mrs) Lee’s conduct appears prima facie to be in breach of Rules 25 and 46 of the Professional Conduct Rules”, and that the rules necessitate lawyers to avoid or remove themselves from “a position of conflict”.

Consequently, AGC said that the referral was made “in accordance with the law, and consistent with how the AGC has handled other cases of alleged professional misconduct by lawyers.”

“There will be a full hearing before the Disciplinary Tribunal (DT) appointed by the Chief Justice. Ms Lee Suet Fern can put forward her case before the Tribunal, in accordance with the Legal Profession Act,” concluded AGC.

The two issues that the dealt with was whether Mrs Lee and LKY had a solicitor-client relationship; and if so, did Mrs Lee fail her client to the extent of professional misconduct.

Mrs Lee pleaded not guilty to all charges.

Mrs Lee found guilty by Disciplinary Tribunal

Following a five-day hearing, the DT found Mrs Lee guilty of grossly improper professional misconduct in handling the final will of LKY under section 83(2)(b) of the Legal Profession Act.

The tribunal said in a report released on 21 February that Mrs Lee and her husband—who is the youngest son of the late Mr Lee and one of the executors of his late father’s will—had encouraged LKY to revoke the sixth will in the absence of LKY’s lawyer Kwa Kim Li.

Ms Kwa was tasked with drafting all of Mr LKY’s wills from the first one to the sixth — the penultimate — will, from 2011 to 2012.

Mrs Lee and Mr LHY had reportedly arranged the revocation of the sixth will with Mr LKY and the execution of a new will — which was to be Mr LKY’s last will — despite Mr LKY’s agreement to execute a codicil to the sixth will.

COTJ hands down 15-month suspension

Given the DT’s findings against Mrs Lee, the Court of Three Judges—which is Singapore’s apex disciplinary body in dealing with lawyers’ misconduct—was tasked with determining Mrs Lee’s sentence.

On 20 November, the Court of Three Judges decided suspend Mrs Lee from legal practice for 15 months.

In a statement to the media, Mrs Lee said that she disagrees with the court’s decision. She noted that there was no basis for this case to have even been initiated, as it was a private will.

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