Case Summaries

Law Society of Singapore v Ezekiel Peter Latimer [2019] SGHC 92

SUPREME COURT OF SINGAPORE

9 April 2019

Case summary

Law Society of Singapore v Ezekiel Peter Latimer  [2019] SGHC 92
Originating Summons No 4 of 2018

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Decision of the Court of Three Judges (delivered by Sundaresh Menon CJ):

Outcome: The Court of Three Judges orders the respondent solicitor to be suspended for a period of three years for acting in conflict of interest in a criminal matter.

Background to the application

1          This was an application by the Law Society of Singapore (“the applicant”) against the determination of the Disciplinary Tribunal (the “DT”) that the respondent’s misconduct did not amount to grossly improper conduct within s 83(2)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) or conduct unbefitting an advocate and solicitor within s 83(2)(h) of the LPA. The applicant was also dissatisfied with the sanction of $3,000 imposed against the respondent by the DT, which it submitted was inadequate.

Facts

2          The respondent solicitor was engaged to represent an Indian national (“Sunil”) after the latter was charged with making a false declaration in his application for work permit (“AWP”) by stating a salary higher than what he was to receive. Sunil’s employer (“Dipti”) had counter-signed Sunil’s AWP and was also charged with an offence. The respondent had, prior to representing Sunil, been engaged to represent Dipti in the charge she faced.

3          Sunil had informed the respondent, through his instructions, that he was unaware at the time he signed the AWP that the salary declared in the AWP was false, in that what was declared was higher than what he was to receive. He informed the respondent that he was deceived by Dipti into believing that his salary was as stated in the AWP. However, when the respondent sent in representations to the Attorney-General’s Chambers (“AGC”) on Sunil’s behalf (“Representations”), he did not convey Sunil’s instructions as such. Instead, the Representations stated that Sunil had asked Dipti about the discrepancy between the amount he was going to receive as his salary and the amount declared in the AWP, and had accepted Dipti’s explanation, before signing the AWP. Sunil was ultimately convicted of the offence and sentenced to a fine of $6,000.

4          The DT found that the respondent had preferred the interests of Dipti over Sunil in acting as he did, and also knowingly deceived or misled the AGC in the Representations. The DT thus found that the respondent’s conduct was improper under s 83(2)(b)(i) of the LPA, but did not find that such conduct was “grossly improper” under s 83(2)(b) or “misconduct unbefitting an advocate and solicitor” under s 83(2)(h) of the LPA. Dissatisfied with this determination and the sanction imposed, the applicant filed the present application.

Decision of the Court of Three Judges

5          The DT erred in finding that the respondent’s conduct was merely improper and not grossly so – the respondent’s misconduct could not be classified as simple negligence, as the DT’s findings show that the respondent had deliberately compromised Sunil’s interests in order to prefer the interests of Dipti, which went against the very essence of the duty owed by a solicitor to his client. The respondent’s conduct was thus also unbefitting an advocate and solicitor (at [39]– [41]).

6          Misconduct arising from a conflict of interest is reprehensible because it entails a grievous violation of a lawyer’s duty of unflinching and undivided loyalty to his client, which is a foundational responsibility on which the integrity of the legal profession depends, and misconduct of this nature must thus be dealt with by appropriate sanctions (at [48]).

7          The sanction to be imposed should reflect the culpability of the errant solicitor and the harm caused by his misconduct. The solicitor’s culpability can be determined by examining factors such as his motivation for the misconduct, whether the misconduct was planned or spontaneous, the extent to which the solicitor acted in breach of a position of trust and so on. The harm caused should be determined with reference to the impact of the misconduct on (a) those directly or indirectly affected by the misconduct such as the solicitor’s client; (b) the public; and (c) the reputation of the legal profession (at [49]– [56]).

8          Where the misconduct involves a solicitor preferring his own interests over that of a client (“Category 1”), the misconduct is presumptively more serious and deserving of a more severe sanction, as such cases would involve higher harm and culpability. This is because such misconduct will often entail an abuse of trust to the detriment of the client. Thus, where a solicitor personally transacts with the client to his own advantage, or receives a substantial gift from the client, or in any other manner puts himself in a situation where his personal interest conflicts with that of the client, striking off would be the presumptive penalty unless exceptional circumstances exist (at [60], [67]).

9          Where the misconduct involves a conflict of interest between multiple clients with diverging interests, a more severe sanction is justified where the solicitor in fact prefers the interest of one client over another (“Category 2A”). This is in contrast to cases where a potential conflict of interest had arisen but the solicitor did not in fact prefer the interest of one client over another (“Category 2B”). In Category 2A cases, the appropriate sanction would usually be a term of suspension with a starting point of around two years. A longer term of suspension ought to be imposed on solicitors who, in acting for multiple clients, prefer the interests of clients whose interests are more closely aligned with those of the solicitor himself (at [70][72]).

10        In Category 2B cases, ie, where the misconduct involves a potential conflict of interest between multiple clients but the solicitor did not in fact prefer the interest of one client over another, the harm caused by and culpability of the solicitor would usually be lower. A term of suspension may nonetheless be appropriate where there is a larger public interest that is harmed by virtue of the misconduct (at [73]).

11        The present case fell within Category 2A as the respondent had actually preferred the interests of Dipti over Sunil, and the starting point would be a term of suspension. The culpability of the respondent was relatively high as the DT had found that the respondent knew or ought to have known that there was a conflict of interests. The DT also found that the respondent deliberately crafted the Representations to the AGC in the manner that he did in order to prefer the interests of Dipti over that of Sunil. The Respondent had deliberately misrepresented Sunil’s defence to the AGC and essentially prevented the Attorney-General from properly exercising his constitutional discretion in directing public prosecutions. The harm caused to Sunil by the respondent’s misconduct was also relatively high, as Sunil was ultimately convicted of a criminal offence and made to pay a hefty fine. In the circumstances, a term of suspension of three years was appropriate (at [75] [80]). 

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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