At the end of last month, Singapore’s apex court had ordered the Law Society to act on a professional misconduct complaint made by a mentally impaired elderly woman’s son against a lawyer who played a role in setting up a trust for her.
The elderly woman, who was 80 at the time, had inherited about S$200 million and was at the time expected to receive another S$100 million from her late father’s estate.
Delivering a written judgement on 29 Jan this year, Chief Justice Sundaresh Menon said that the Law Society had failed to take steps to reconsider its decision not to obtain leave to refer the complaint, despite being called on to do so by the High Court nearly a year ago.
By law, the Society was required to seek the apex court’s permission to refer the lawyer for investigation into the alleged misconduct, given that the alleged misconduct had occurred more than six years prior to when the complaint was made.
The Law Society Council, the CJ observed, did not reconsider the matter “timeously” or disclosed reasons addressing the crux of the son’s complaint.
Agreeing with the High Court’s view last year that the Council’s action was without merit, CJ Menon said on behalf of a three-judge panel that the Council “had a duty to act by virtue of the Judge’s order and there was no basis at all for it not to have done so”.
“In our judgment, the Council’s decision not to reconsider the matter during the intervening period rendered the pursuit of this appeal necessary,” said the CJ.
While the Law Society “undoubtedly plays an integral role in maintaining the standards of the profession”, it is the court that “exercises ultimate responsibility for the discipline of lawyers and it presides over the disciplinary process”, CJ Menon stressed.
The CJ reasoned that directing a public authority to undertake specific actions “may, in exceptional cases, further the purpose of sound public administration and “ensure that executive action is exercised responsibly and as Parliament intended”.
The CJ stressed that allowing “known errors to fester would only undermine public confidence in our institutions”.
He added that the court’s power to issue a mandatory order in specific terms, such as in the case at hand, may “deter a decision-maker who is unwilling to act but who seeks to insulate his non-performance of a duty by also refusing to disclose reasons”.
This is especially given that a decision-maker “does not normally bear a duty to furnish reasons” as per Manjit Singh s/o Kirpal Singh and another v Attorney-General and Re Nalpon Zero Geraldo Mario.
The lawyer, referred to as ‘Mr L’ in the Court of Appeal judgement in January, had advised the widow to do so in 2010 after she reportedly sought steps on how to protect her money.
‘Mr L’ had spoken on the woman’s behalf in meetings in 2010 with two banks in a bid to transfer her assets to a third bank where the trust was set up.
The widow’s two sisters in February 2011 had, in the first instance, applied to the Family Court under the Mental Capacity Act to have her declared to be lacking the mental capacity to manage her assets and affairs.
They sought to be appointed as her deputies to act for her, as they alleged that the widow’s youngest daughter and son-in-law were unduly influencing the widow.
The Family Court made the declaration as sought and appointed the two sisters as deputies.
However, the two sisters’ application was set aside by the High Court following the widow’s appeal.
Following that, the two sisters’ lawyers from Shook Lin & Bok, led by Senior Counsel Sarjit Singh, had applied to the High Court seeking leave to bring their case to the Court of Appeal.
Rajah & Tann’s Senior Counsel Lee Eng Beng represented the widow’s youngest daughter and son-in-law, opposing their aunts’ application.
When the matter went before the apex court in 2015, the widow was found to be mentally impaired and unfit to make decisions regarding her assets.
CJ Menon at the time found that the meetings with the banks in 2010 point to the widow’s inability to make the decision to transfer her assets to the third bank, even as she was apparently making the said decision.
Even the availability of assistance from ‘Mr L’ and a banker from the third bank, said the CJ, did not prevent the widow from acting to establish the trust and to transfer her assets to the third bank.
“It follows that the “practicable steps” taken by her present professional advisors are not sufficient to help her retain her decision-making ability,” CJ Menon added.
The court also found that the widow’s younger daughter and son-in-law had exerted undue influence on her decisions.
Instead of the two sisters, however, financial and legal professionals were appointed as deputies for the widow.
Another party affected by the Court of Appeal judgment last month is former People’s Action Party (PAP) Member of Parliament, Alvin Yeo, as his case was also influenced by the time restrictions.
Mr Yeo, a Senior Counsel from Wong Partnership, acted for the widow against the two sisters.
In the 2015 Court of Appeal ruling, the court highlighted the size of the fees billed by Wong Partnership and directed the matter to be referred for investigation.
However, it stressed that it had not arrived at any conclusion at the time as to whether or not there was professional misconduct.
Three years later, the widow’s son lodged a professional misconduct complaint against Mr Yeo.
While a disciplinary tribunal (DT) in May 2019 cleared him of overcharging the widow, the Attorney-General and the Law Society had separately applied to have the DT’s decision reviewed.
The High Court in January last year set aside the said DT’s report.
Justice Valerie Thean found that the charges only concerned overcharging and not the larger question of the widow’s mental capacity.
She then directed the Law Society to apply to the CJ for leave to refer Mr Yeo for investigation regarding the matter under a new DT.
The requirement to apply to the CJ arose due to the alleged misconduct taking place over six years prior to the complaint being lodged.
The Council of the Law Society, however, had declined to do so, following which the widow’s son applied for judicial review of the matter in the High Court.
Justice Aedit Abdullah subsequently found that the widow’s son was able to demonstrate that the Council was “unreasonable” and irrational in deciding not to seek leave from the CJ to refer the lawyer for investigation.
The judge reasoned that the decision was irrational because the Council had failed to take into account relevant considerations by neglecting to consider the merits of the son’s claim, having instead taken into account irrelevant considerations such as the complaint being made by the son in his personal capacity and the events in his complaint being time-barred.
Justice Aedit, however, declined to make an order mandating the Council to make the necessary application to the CJ to refer the complaint for investigation. The High Court judge also did not make an order with respect to costs.
The son then appealed to have the court compel the Law Society to refer his complaint to be investigated, as well as against Justice Aedit’s decision on costs.
In the Court of Appeal’s judgement last month, CJ Menon allowed the son’s application for a mandatory order to compel the Law Society to file for permission to allow the son to make his case without being deterred by the time bar.
However, he dismissed the son’s appeal against the High Court’s decision not to make an order on costs in the said court.
Despite that, the CJ fixed costs in the aggregate sum of S$10,000 for the appeal before the Court of Appeal in favour of the son, as “it was wrong of the Council not to have acted at all, following the [High Court] Judge’s order”.
“That order was not being challenged, and yet it had not been acted on throughout the intervening period of almost a year. By its inaction, the respondent made the pursuit of the appeal necessary,” said CJ Menon.