The Court of Three Judges’ (COTJ) decision to find senior lawyer Lee Suet Fern guilty of professional misconduct and suspend her from legal practice was one made out of “serious legal error” and legally unsound reasoning, said Timothy Dutton CBE, leading Queen’s Counsel and former London Bar Council chairman.
This legal opinion was shared by Mrs Lee’s spouse Mr Lee Hsien Yang (LHY) via his Facebook page on Sunday morning (10 January).
Mr Lee highlighted that the Queen’s Counsel is a pre-eminent legal expert and ranked as a ‘star individual’ in professional disciplinary and professional negligence.
“He is described as “the leading player in this area” and “the king of Law Society regulatory work”. He acts for and advises regulators, firms and individuals on regulatory and professional matters and has undertaken numerous high profile cases. He has served as Chairman of the Bar Council and Head of Fountain Court Chambers.”
The COTJ had ordered Mrs Lee’s suspension from legal practice for 15 months on 20 November last year.
The court — Singapore’s apex disciplinary body in dealing with lawyers’ misconduct — issued its judgment in relation to the alleged conflict of interest present in Mrs Lee’s involvement with Singapore’s founding prime minister and her father-in-law Lee Kuan Yew’s last will on 17 December 2013.
The complaint of conflict was filed by the Attorney General’s Chambers (AGC) — headed by Mr Lucien Wong, who is said to have recused himself from the matter but at the same time is also the former lawyer of Prime Minister Lee Hsien Loong — on the matters of LKY’s last will.
Differing from the findings of the Disciplinary Tribunal — convened as a result of AGC’s complaint — which earlier found Mrs Lee guilty of grossly improper professional misconduct under Section 83(2)(b) of the Legal Profession Act, the COTJ — led by Chief Justice Sundaresh Menon — was not satisfied with the assertion that Mr LKY had viewed Mrs Lee as his acting solicitor.
The COTJ, however, was not of the view that a solicitor with Mrs Lee’s level of seniority could reasonably believe that an implied retainer did not exist between her and Mr LKY under such circumstances.
Mr Dutton, in issuing his legal opinion on 21 December last year, remarked that the Court had made an “untenable finding” regarding the issue of Mrs Lee’s possible knowledge or impression of an implied retainer between her and her father-in-law.
“First, because as the Court itself found, LSF was simply obtaining a copy of the agreed Will at her husband’s request.
“Second, because there is no communication with the putative client (LKY) beyond sending a draft.
“Third, since the Court also found that LKY did not consider LSF to be his solicitor, it is difficult to understand why she should be required to reach the opposite conclusion on the basis of “implication”,” said Mr Dutton.
Mr Dutton noted that while the COTJ eventually disagreed that there was an implied solicitor-client relationship between Mrs Lee and Mr LKY, seeing how Mr LKY did not consider Mrs Lee to be acting as his solicitor, the Court “made numerous findings” as to Mrs Lee’s “subjective state of mind and was critical of her conduct as a solicitor”.
Charges drafted by Law Society of Singapore against Lee Suet Fern “potentially highly problematic”; Society did not state what legal duties Mrs Lee was bound by: Timothy Dutton QC
He added that the Law Society’s charges against Mrs Lee — one regarding not advancing Mr LKY’s interests unaffected by her husband, Mr LHY’s interests, and the other against her supposed failure to advise Mr LKY to seek independent advice — “were potentially highly problematic”.
The “fundamental question” of by what legal duty Mrs Lee was bound to do either, said Mr Dutton, was not dealt with by the Law Society.
The Society, he added, did not “provide the Court with any principled basis upon which the Court could find such legal duties in the absence of a solicitor-client relationship”.
Mr Dutton also highlighted that the COTJ had concluded prior to turning to the Law Society’s charges that a solicitor-client relationship did not exist between Mrs Lee and Mr LKY.
Thus, the Court needed to ensure that it was not assessing Mrs Lee’s professional conduct “by reference to duties which self-evidently could not and did not arise because there was no solicitor-client relationship”.
“In other words, the Court needed to remind itself that in assessing LSF’s conduct in relation to her assisting in a familial context with her father in law’s will, the duties which are imposed upon solicitors by virtue of the solicitor-client relationship did not here arise,” stressed Mr Dutton.
Mr Dutton noted that while the COTJ had “nominally” reminded itself in its judgement that there was an “absence of an implied retainer”, the Court then proceeded to assess Mrs Lee’s conduct by referring to “duties which would have applied to her had she been a solicitor retained by a client, as opposed to a member of LKY’s family who in that capacity was providing him with some limited assistance”.
“If LSF was not LKY’s solicitor, no duty of care as a solicitor could possibly have arisen. The imposition of duties qua solicitor (when no such solicitor-client relationship was found by the Court) underpins the Court’s judgment and is its central flaw,” Mr Dutton opined.
COTJ imposed upon Lee Suet Fern “duties which the law imposes only by virtue of” a solicitor-client relationship “despite having found” no such relationship between her and Mr LKY: Timothy Dutton QC
The QC also highlighted that under English law, “a solicitor may, even where the parent has not taken separate advice, assist a surviving parent to draft a will where the solicitor is an equal beneficiary under the will with his/her siblings”.
This is provided for under the Legal Services Act 2007 and the Solicitors Act 1974 via the Solicitors Regulation Authority’s 2019 Guidance “Drafting and Preparation of Wills”.
“Where, as here, the assistance comprises help in the form of the sending of a draft, assistance with execution and where the beneficial entitlements are agreed between the testator’s siblings and the solicitor is not a beneficiary, the situation is a fortiori: it is expressly permitted under English rules,” said Mr Dutton.
Thus, the COTJ in its judgement, is “imposing” upon Mrs Lee “duties which the law imposes only by virtue of” a solicitor-client relationship “despite having found” no such relationship between her and Mr LKY, according to the QC.
The Court, Mr Dutton added, did not analyse the duties “which apply to a family member who happens to be a solicitor” when looking at the aforementioned charges against Mrs Lee, compared to duties imposed upon a solicitor by virtue of the solicitor-client relationship.
What the COTJ had done, instead, is “import” the duties of a retained solicitor “into a family relationship” and “imposed a strict professional duty of care when none existed”, he opined.
Had it been found that Mr LKY was vulnerable — which he was found to not have been — or been subject to duress under Mrs Lee as per Bom v Bok, then “there might have been a foundation for a finding of misconduct” even if Mrs Lee was not his solicitor, said Mr Dutton.
“This is because a solicitor abusing a person’s vulnerability would, even in the absence of a retainer be committing unbefitting misconduct per s 83(2)(h). But there was no such finding, nor could there have been on the evidence before the Court,” he elaborated.
Suggestion that LKY was misled by Lee Suet Fern into signing the Last Will “without foundation”, evidence demonstrates LKY wanted to revert to will agreed upon by his children: Timothy Dutton QC
Mr Dutton also critiqued the suggestion that Mr LKY was “in any way misled as to what he was signing” when he signed his Last Will, branding it one “without foundation”.
Among the evidence referenced by Mr Dutton include the email sent by Mrs Lee to Mr LKY on the evening of 16 December 2013. At the time, Mrs Lee was due to leave for business meetings in Paris.
In the email, which she had copied to Mr LKY’s solicitor Kwa Kim Li and Mr LHY, Mrs Lee enclosed a copy of a draft of the First Will.
Mrs Lee wrote in the email that the copy of the draft she attached was “the original agreed Will which ensures that all three children receive equal shares, taking into account the relative valuations (as at the date of demise) of the properties each receive”.
Mr Dutton also cited an email sent by Mr LKY to his personal assistant on 17 December 2013 after having signed the Last Will.
In the email, Mr LKY had instructed his personal assistant to inform Ms Kwa that “this [is] the agreement between the siblings”.
“The evidence demonstrates that LKY wanted to revert to the will agreed by the siblings,” Mr Dutton said.
Mr LKY, noted Mr Dutton, was “an astute reader of documents and read the draft Last Will with care before executing it on 17 December 2013”.
“Not only is this affirmed by the evidence of those who witnessed the Will, it can be seen from the fact that LKY signed every page of the document,” he said.
Mr Dutton also highlighted that Ms Kwa was also provided with a copy of the Last Will and “had every opportunity to read it”.
“She raised no concerns having been privy to the discussions with LKY about his desire to change his will earlier in December 2013,” he observed.
Mr LKY, said Mr Dutton, had also made arrangements on 2nd January 2014 to prepare and execute a codicil to the Last Will dated 17 December 2013, without any solicitor or family involvement.
The codicil was in relation to two carpets to be passed down to Mr LHY, which Mr Dutton noted, were not in the draft sent by Mrs Lee to Mr LKY.
Mr LKY “appreciated from reading the Will that he needed to attend to this detail”, he said.
It is, therefore, “untenable” for the COTJ to have believed that Mr LKY was receiving from Mrs Lee the First Will as executed, according to Mr Dutton.
“Had the criminal standard of proof been properly applied the Court could not have reached this finding,” he posited.
None of the Lee siblings, Mr Dutton noted, had “suggested that the draft as sent did not fairly and accurately represent the agreement between the siblings which found its way into the First Will and the Last Will”.
“Thus, any “misrepresentation” if such it be (i.e. that the draft represented the First Will as executed) is, against the background as set out above, minor.
“Had this been a solicitor-client relationship, I consider it unlikely that the error would be such as to fall outside errors which might be made by reasonably competent solicitors acting for a client, but still less could this be categorised as a manifestly incompetent or egregious error,” he said.
Since there was no solicitor-client relationship between Mrs Lee and Mr LKY, a misconduct case on the basis of the misrepresentation found “cannot get off the ground”, he observed.
No conflict of interest, as Mr LHY himself was an executor of the Will: Timothy Dutton QC
Contrary to the COTJ’s approach on the question of conflict of interest on Mrs Lee and Mr LHY’s part, Mr Dutton also opined that Mrs Lee was — despite Mr LHY being a beneficiary of the Will — “entitled to accede” to Mr LHY’s request to “send the draft Will under cover of her email” to Mr LKY.
She was also entitled to provide assistance with the execution of the Will.
“First LHY was himself to be an executor of the Will and second, there was no conflict between the three sibling/beneficiaries of the Will: this is because the Last Will as sent through on the evening of 16th December 2013 accorded with their agreement.
“It follows that there were no divided loyalties or conflicts of interest in the situation as it prevailed, still less was the purported division of loyalties or conflict serious,” said Mr Dutton.
“Indeed, had this matter proceeded in England and had LSF been engaged by LKY to draft the will LSF would have been acting in a manner which was approved by the regulator,” he added.
In view of the above, Mr Dutton said that he does not regard the “mistakes” the COTJ had found Mrs Lee to have made to be the kind that “cross the threshold into professional misconduct and the Court was plainly wrong so to find”.
“In my view, such findings would not be sustained on any appeal were one to be available against the judgment of the Court.
“Further, since the findings of misconduct are untenable no sanction should have been imposed,” concluded Mr Dutton.
The decision by the COTJ, however, cannot be appealed.
Former London lord mayor: Lee Suet Fern’s unjust suspension “a stain” on S’pore’s international reputation
Previously on 30 November, former London lord mayor Sir David Thomas Rowell Lewis said that Mrs Lee’s unjust suspension has left a “stain on the international reputation of Singapore”.
In a letter titled “What I know about Singapore’s Lee Suet Fern”, published by South China Morning Post (SCMP), Sir Lewis said that he has been “very disturbed” to read about the Singapore Law Society’s failed attempt to disbar Mrs Lee in relation to her involvement in handling Mr LKY’s Last Will.
Sir Lewis, who is also the former president of City of London Law Society, said that he had known Mrs Lee for four decades and described her as “a senior lawyer of undisputed ability, ethics and experience, and a partner in a major US global law firm”.
He also mentioned that Mr LKY had spoken to him of his trust in and admiration of Mrs Lee during a lunch he hosted for Mr LKY in 2008 in London.
“Who will believe that he would have had any objection to his daughter-in-law helping to arrange for the witnessing of his will, which she did not draft, or that she acted in any way improperly?
“In my view, she has been unjustly suspended, a stain on the international reputation of Singapore,” he remarked.
Sir Lewis also pointed out that the assertion that Mr LKY would have signed anything against his wishes “is fantasy”, as Mr LKY himself was also a lawyer.
LSF: No basis for the case to have even been initiated as this was a private will
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 as this was a private will.
“The Court of Three found that ‘he [Lee Kuan Yew] was content with it [this will]. No complaint had ever been lodged by my father-in-law, Lee Kuan Yew, nor by any of his beneficiaries or his personal lawyer for his various wills, Kwa Kim Li,” she said.
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.”