Case Summaries

Law Society of Singapore v Lee Suet Fern

SUPREME COURT OF SINGAPORE

20 November 2020

Case summary

Law Society of Singapore v Lee Suet Fern (alias Lim Suet Fern) [2020] SGHC 255
Originating Summons No 2 of 2020

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

Outcome: Respondent is found guilty of misconduct unbefitting an advocate and solicitor despite the absence of an implied retainer, and suspended from practice for 15 months.

Pertinent and significant points of the decision:

  • In determining whether an implied retainer ought to be imputed, the fundamental question is whether, on an objective analysis of the circumstances from the perspectives of both the putative solicitor and the putative client, an intention to enter into a solicitor-client relationship should be attributed to the parties. Where this is so, an implied retainer will be imputed regardless of whether or not the particular requirements for the formation of a contract have been satisfied: at [61], [63] and [68].

Background to the application

1 This was an application by the Law Society of Singapore (“the Law Society”) for an order that the respondent, Mrs Lee Suet Fern (alias Lim Suet Fern) (“the Respondent”), be sanctioned under s 83(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed). The application concerned the Respondent’s participation, principally on 16 and 17 December 2013, in the preparation and execution of what became the last will (the “Last Will”) of her father-in-law, the late Mr Lee Kuan Yew (“the Testator”).

The material facts

2 Prior to executing the Last Will, the Testator executed six wills between 20 August 2011 and 2 November 2012 (referred to as the “First Will” to the “Sixth Will” respectively). Each of these wills were prepared by his solicitor, Ms Kwa Kim Li (“Ms Kwa”). Some of the key changes between the various wills included: (a) whether the Testator’s estate would be left in equal or unequal shares to his three children, namely, Mr Lee Hsien Loong, Dr Lee Wei Ling (“Dr LWL”) and the Respondent’s husband, Mr Lee Hsien Yang (“Mr LHY”); and (b) whether there was a stipulation of the Testator’s wish that his house at 38 Oxley Road be demolished either upon his passing or after Dr LWL had moved out, whichever was later (“the Demolition Clause”). Under the First Will, the Testator’s estate was left to his three children in equal shares, whereas under the Sixth Will (the will immediately preceding the Last Will), Dr LWL was given an additional 1/7 share of the estate compared to her two brothers. As for the Demolition Clause, it featured in the first four wills, but was omitted from the Fifth and Sixth Wills.

3 The Testator’s health deteriorated markedly after the execution of the Sixth Will on 2 November 2012. From around 29 November 2013 to 13 December 2013, he discussed with Ms Kwa some changes which he wished to make to the Sixth Will. As at 13 December 2013, his professed intention was to execute a codicil to his Sixth Will that would: (a) revert to leaving his estate in equal shares to his three children; and (b) make provision for two carpets to be bequeathed to Mr LHY. His discussions with Ms Kwa did not extend to replacing the Sixth Will with another will, nor to reinstating either the First Will as a whole or the Demolition Clause in particular.

4 On 16 December 2013, the Respondent sent an email to the Testator at 7.08pm, copying Mr LHY and Ms Kwa, although it appeared that Ms Kwa, for some unknown reason, did not receive that email (the “7.08pm email”). To that email, the Respondent attached a draft will that appeared to have been dated 19 August 2011 (the “Draft Last Will”), and informed the Testator that “[t]his was the original agreed Will which ensures that all 3 children receive equal shares”. She also requested Ms Kwa to “please engross” the Draft Last Will. It was undisputed that the words “original agreed Will” in this email were intended by the Respondent to refer to the Testator’s First Will and would have been understood by the Testator as such. It was also undisputed that the Draft Last Will was executed by the Testator on 17 December 2013 without any substantive amendment, and became his Last Will. Although the Respondent told the Testator that the Draft Last Will was the First Will, it in fact differed from the latter in a number of respects.

5 At 7.31pm on 16 December 2013, shortly after the Respondent’s 7.08pm email, Mr LHY emailed the Respondent, copying the Testator and the Testator’s personal secretary (“Ms Wong”), while removing Ms Kwa from the list of addressees. In his email (the “7.31pm email”), Mr LHY told the Testator that: (a) he was unable to contact Ms Kwa and believed that she was away; (b) he did not think it was wise for the Testator to wait until she was back before executing the Last Will; (c) all the Testator needed was “a witness to sign”; and (d) the Respondent “[could] get one of her partners to come round with an engrossed copy of the [Last Will] to execute and witness”.

6 At 8.12pm, before the Testator had even replied to Mr LHY’s 7.31pm email, the Respondent sent an email to Ms Wong, copied to Mr LHY and her colleague, Mr Bernard Lui (“Mr Lui”), to make arrangements for the execution of the Last Will. Shortly thereafter, at 9.42pm, the Testator replied to Mr LHY’s 7.31pm email, agreeing to his proposal to proceed with the execution process without waiting for Ms Kwa.

7 The next morning, Mr LHY and the Respondent sent separate emails to Mr Lui requesting him to make himself available to attend to the execution of the Last Will. At or about 11.00am, Mr Lui and Ms Elizabeth Kong, another colleague of the Respondent, attended at the Testator’s residence and witnessed the execution process. Mr Lui then updated the Respondent that the execution of the Last Will was “done”, and that two original copies of it had been made. The Respondent in turn informed Mr LHY of this and asked him what she should do with the two original copies. On Mr LHY’s instructions, the Respondent kept one original copy in her office safe and arranged for the other original copy to be forwarded to Ms Wong.

8 At 1.16pm, the Respondent emailed Ms Kwa, who had been excluded from all correspondence pertaining to the preparation and execution of the Last Will after the 7.08pm email the previous day, and informed her that the signing of the Last Will “ha[d] been dealt with already”. In her email to Ms Kwa, the Respondent did not include any of the emails from which Ms Kwa had been excluded.

9 On 2 January 2014, about two weeks after executing the Last Will, the Testator prepared and executed a codicil to it (“the Codicil”) bequeathing two carpets to Mr LHY. On 23 March 2015, a little over a year later, the Testator passed away. Probate of the Last Will was extracted without opposition in October 2015.

The charges against the Respondent and the Disciplinary Tribunal’s decision

10 Following a complaint filed by the Attorney-General’s Chambers against the Respondent on 4 December 2018, the Law Society preferred two charges (each with an alternative and a further alternative charge) against the Respondent in respect of her participation in the preparation and execution of the Last Will. The first charge, along with the alternative and further alternative charges, related to her alleged failure to advance the Testator’s interest unaffected by her own and/or her husband’s interest. The second charge, along with the alternative and further alternative charges, related to her alleged conduct in: (a) acting in connection with the significant gift that the Testator intended to give to her husband by will; and (b) failing to advise the Testator to be independently advised in respect of that gift.

11 The primary charges were brought on the ground of “grossly improper conduct in the discharge of [the Respondent’s] professional duty”, while the alternative charges were brought on the ground of “improper conduct or practice as an advocate and solicitor”, and the further alternative charges, on the ground of “misconduct unbefitting an advocate and solicitor”. The primary and alternative charges were premised on a solicitor-client relationship existing between the Respondent and the Testator, whereas this was not the case for the further alternative charges.

12 The Disciplinary Tribunal (“the DT”) concluded that all the charges against the Respondent had been proved beyond a reasonable doubt, and that there was cause of sufficient gravity for disciplinary action to be taken against her. The Law Society then filed the present application seeking a striking off order against the Respondent.

The Court of Three Judges’ decision

13 In coming to its decision, the Court of Three Judges (“the Court”) examined four issues, namely: (a) whether there was an implied retainer between the Respondent and the Testator; (b) if so, whether the Respondent’s conduct amounted to grossly improper conduct in the discharge of her professional duty, or improper conduct or practice as an advocate and solicitor; (c) if no implied retainer existed, whether the Respondent’s conduct nevertheless amounted to misconduct unbefitting an advocate and solicitor; and (d) if the Respondent was guilty of any of the charges, what was the appropriate sanction to impose: at [55].

Whether there was an Implied retainer between the Respondent and the Testator

14 The Court held that in determining whether an implied retainer ought to be imputed, the fundamental question was whether, on an objective analysis of the circumstances from the perspectives of both the putative solicitor and the putative client, an intention to enter into a solicitor-client relationship should be attributed to the parties. Where this was so, an implied retainer would be imputed regardless of whether or not the particular requirements for the formation of a contract had been satisfied: at [61], [63] and [68].

The analysis from the Respondent’s perspective

15 The Court assessed the situation from the Respondent’s perspective with reference to two sub-issues: (a) what led her to send the 7.08pm email on 16 December 2013; and (b) how she obtained the Draft Last Will attached to that email: at [70].

16 In respect of the first sub-issue, the Court noted that the Respondent had advanced two inconsistent explanations as to the circumstances which led her to send the 7.08pm email. The inconsistency lay in whether, as asserted under the first explanation, the Testator had given express instructions directly to the Respondent to revert to the First Will, or whether, as asserted under the second explanation, he had instead communicated those instructions to Mr LHY, who had then asked the Respondent to make the necessary arrangements to give effect to those instructions: at [79][83] and [85].

17 Although the second explanation reflected a new position that was adopted for the first time only in the course of the disciplinary proceedings, the Court nevertheless found that it was in fact the true position. This was because: (a) there was no plausible reason why the Testator, who regarded Ms Kwa as his solicitor for matters pertaining to his estate generally, would have abruptly approached the Respondent to convey to her directly his wish to revert to the First Will and to seek her assistance in that regard; (b) if the 7.08pm email had been sent by the Respondent in response to an instruction from the Testator to her directly, there would have been no need and no reason to copy the email to Mr LHY and involve him in carrying out the Testator’s instruction, and also no reason to copy the email to Ms Kwa and seek her assistance to engross the Draft Last Will attached to that email; and (c)  if the Testator had indeed instructed the Respondent directly, further communications between them would have been expected after the 7.08pm email, but there were no such communications, with the further communications being between the Testator and Mr LHY instead: at [89][92].

18 The Court therefore accepted the second explanation of the circumstances that led to the Respondent sending the 7.08pm email. This was to the effect that the Testator had informed Mr LHY sometime on 16 December 2013 that he wanted to revert to his First Will, under which his children would receive equal shares of the estate. As Mr LHY was due to leave for Brisbane that evening, he contacted his wife, the Respondent, and asked her to liaise with Ms Kwa to make the necessary arrangements for the Testator to re-execute the First Will. Based on what Mr LHY had told her, the Respondent sent the Testator the 7.08pm email attaching the Draft Last Will, which she presented as being the First Will: at [92][94].

19 As regards the second sub-issue, the Court rejected the Respondent’s account that Mr LHY had sent the Draft Last Will to her, and she had then forwarded it to the Testator without even opening it. The Court found on the evidence that the Draft Last Will in fact emanated from the Respondent, who had been involved in drafting certain aspects of the Testator’s First Will, and not from Mr LHY. Upon being told by Mr LHY that the Testator wanted to revert to the First Will, the Respondent retrieved from her records what she thought was the final draft of the First Will and sent it to the Testator with a view to having it re-executed. In this regard, there was a notable lack of diligence on her part as she made no effort to establish whether whatever draft of the First Will that she had and that she forwarded to the Testator (namely, the Draft Last Will) was the same as the executed version of the First Will. Instead, she assumed this to be so and represented it as such to the Testator in her 7.08pm email on 16 December 2013, even though she was in no position to make any such representation as the executed version of the First Will was never in her hands. The Draft Last Will was in fact not the final draft of the First Will that the Respondent had in her possession as the evidence indicated that she had a later draft that appeared to have been subsequently executed by the Testator as his First Will: at [99], [100], [102] and [103].

20 Notwithstanding the above findings, the Court held that as at 7.08pm on 16 December 2013, no implied retainer had arisen between the Respondent and the Testator. This was because the Respondent had purported to include the Testator’s regular solicitor, Ms Kwa, in the list of addressees in the 7.08pm email and had asked Ms Kwa to see to the engrossing of the Draft Last Will attached to that email. This suggested that the Respondent believed, at that stage, that Ms Kwa would duly confirm the Testator’s instructions, check that the Draft Last Will was indeed the document that he wished to sign and resolve any outstanding issues before actually engrossing it for execution. On this basis, the representations made by the Respondent about the Draft Last Will in the 7.08pm email (namely, that it was the First Will and could be used for execution) would not have been relied on by the Testator: at [109].

21 The position changed materially when Mr LHY sent the Testator the 7.31pm email, which was copied to the Respondent and Ms Wong, but which simultaneously removed Ms Kwa from the list of addressees. The Respondent would have been aware that with the exclusion of Ms Kwa, the Testator was being asked to proceed with the execution of the Last Will on the basis of the representations that she had earlier made in her 7.08pm email. Despite Ms Kwa’s exclusion, the Respondent aligned herself with her husband’s position that all that remained to be done was for the Testator to sign the Last Will before two witnesses, even though she must have known or appreciated, or, at the very least, must be taken to have known or appreciated, that had Ms Kwa been involved as the Testator had originally intended, there were a number of things that Ms Kwa would have had to do as the Testator’s solicitor, the most basic of these being to verify that the Testator was being presented with the document that he actually wished to sign. This was something that the Respondent must have known she could not be sure of, especially since she had not even checked whether the Draft Last Will attached to her 7.08pm email was the final draft of the First Will that she had in her possession. The fact that the Last Will was a document under which the Respondent’s husband was, to her knowledge, a significant beneficiary was a further concern. In the circumstances, the Respondent should not have continued to see to or assist with the preparation and execution of the Last Will without Ms Kwa’s involvement: at [110], [112] and [113].

22 Despite Ms Kwa’s exclusion, the Respondent stood by the representations that she had made about the Draft Last Will in her 7.08pm email, even though she knew that she was unable to verify those representations on her own and had not verified them with Ms Kwa either. Those representations effectively assured the Testator that the requisite due diligence checks to ensure that the Draft Last Will accurately reflected his wishes had been carried out, and that all that remained to be done was for him to sign the engrossed version of the draft before two witnesses. The Respondent then made arrangements for the Last Will to be executed before her colleagues, while personally monitoring the arrangements closely, and saw to the safekeeping of an original copy of the executed will. Thereafter, she presented the fact of the execution of the Last Will to Ms Kwa without alerting her at all to the circumstances under which the execution process had taken place, such that any cause for concern would not have been evident to Ms Kwa. Having regard to all these matters, the Court found it implausible that the Respondent could reasonably think that there was no implied retainer between her and the Testator, at least to the limited extent of locating a copy of the executed version of the First Will, checking the Draft Last Will against it and ensuring that the Draft Last Will was ready for execution: at [114], [126] and [127].

The analysis from the Testator’s perspective

23 Turning to the analysis from the Testator’s perspective, the Court noted that as at 7.08pm on 16 December 2013, it remained his expectation that Ms Kwa would attend to the execution of the Last Will, which he believed, pursuant to the Respondent’s representation, to be the First Will. He eventually decided to proceed with the execution process without Ms Kwa due to Mr LHY’s intimation in the 7.31pm email that (among other things): (a) Ms Kwa was uncontactable and appeared to be away; and (b) it was unwise to wait for her to be back before proceeding with the execution of the Last Will. This shift in position was initiated by Mr LHY, and not by the Respondent or the Testator himself, which indicated that the Testator proceeded as he did because of Mr LHY’s advice, and not because he reasonably regarded the Respondent as his solicitor for the preparation and execution of the Last Will. It was also relevant that before signing the Last Will, the Testator had asked Mr Lui, twice, who had drafted the document, and had been told, twice, that it was the Respondent, with a reference to Ms Kwa added on the second occasion. This suggested that the Testator drew some assurance from the indication of Ms Kwa’s involvement. In the circumstances, no implied retainer arose from the Testator’s perspective: at [129][132].

24 Given that an implied retainer could only be found where, on an objective analysis of the circumstances, an intention to enter into a solicitor-client relationship ought fairly and properly to be imputed to all the parties, the Court held that, contrary to the DT’s finding, there was no implied retainer and, therefore, no solicitor-client relationship between the Respondent and the Testator: at [132][133].

Whether the Respondent was guilty of grossly improper conduct or improper conduct or practice

25 As there was no implied retainer between the Respondent and the Testator, the Court held that the primary and alternative charges, which were premised on the existence of a solicitor-client relationship, were not made out and acquitted the Respondent of those charges: at [139].

Whether the Respondent was guilty of misconduct unbefitting an advocate and solicitor

26 The Court held, however, that the further alternative charges were made out as the Respondent was guilty of misconduct unbefitting an advocate and solicitor despite the absence of an implied retainer. The essence of what was objectionable about the Respondent’s actions was as follows (at [149]):

(a) The Respondent put forth the Draft Last Will, a critically important legal document, to the Testator and represented to him that it reflected his testamentary intentions and could be executed as his will. This was despite the fact that she had not herself verified the Testator’s instructions and had not advised him that she was in no position to make those representations, which, she conceded, he would have believed and relied on. Had there been a solicitor-client relationship between the Respondent and the Testator, the Respondent’s conduct would have constituted a grave breach of her duties as the Testator’s solicitor, even without regard to the conflict of interest that would have arisen on account of her husband being a significant beneficiary under the Last Will.

(b) The Respondent allowed the Testator to proceed to execute the Last Will despite the aforesaid circumstances, and, in particular, despite knowing that Ms Kwa, the only person who could check and verify the representations which she had made to the Testator and which he was relying on, had been excluded from the process.

(c) Even after learning about the Testator’s questions as to who had drafted the Last Will, the Respondent did not clarify the position with the Testator. This was in spite of her own submission that those questions demonstrated the Testator’s desire to ensure that the Last Will was indeed the First Will.

(d) After the Last Will was executed, the Respondent did not apprise Ms Kwa fully and frankly of all that had transpired.

(e) The Respondent’s conduct had to be assessed in the light of the divided loyalties which she owed to her husband on the one hand, and to the Testator, who she would reasonably have regarded as her client, on the other hand. Even in the absence of an implied retainer, the potential conflict of interest presented by these divided loyalties must have been patent to the Respondent.

The appropriate sanction to impose

27 Given that there was no solicitor-client relationship between the Respondent and the Testator, the Court considered that the presumptive penalty of striking off would be disproportionate notwithstanding the otherwise clear conflict between Mr LHY’s and, as a corollary, the Respondent’s interests on the one hand and the Testator’s interests on the other hand. The Court emphasised, however, that the sanction imposed on the Respondent should nonetheless reflect both her culpability and the harm caused by her misconduct: at [156].

28 The Court considered that the following culpability factors weighed in favour of a heavier sentence: (a) the Respondent’s singular focus in achieving what her husband wanted, oblivious to the Testator’s interests; (b) the Respondent’s considerable involvement in ensuring the expeditious execution of the Last Will, which contrasted with her remarkable lack of diligence in ensuring that the Testator’s wishes were properly ascertained and carried out, and that he was fully apprised of all the facts; (c) the fact that the Respondent did not attempt to contact Ms Kwa, who had been excluded from all the emails pertaining to the preparation and execution of the Last Will starting from Mr LHY’s 7.31pm email on 16 December 2013, until after the execution of the Last Will, and did not highlight to Ms Kwa the emails which she had been excluded from, with the result that there was no reason for Ms Kwa to have been concerned about the circumstances surrounding the execution process; and (d) the Respondent’s significant experience as a solicitor of more than 30 years’ standing, which rendered her conduct wholly unacceptable and inexcusable: at [158].

29 On the other hand, the following culpability factors weighed against a heavier sentence: (a) the absence of an implied retainer between the Respondent and the Testator, which somewhat attenuated the degree of trust that the Testator placed in the Respondent, although this factor was of limited weight as the Testator was ultimately led by Mr LHY, with the Respondent’s knowledge, to rely solely on the Respondent’s representations about the Draft Last Will, which representations turned out to be untrue; and (b) the fact that the Respondent did not act dishonestly in her dealings with the Testator, although this factor was likewise of reduced weight as the Respondent acted with a degree of dishonesty in the disciplinary proceedings by seeking to downplay her participation in the preparation and execution of the Last Will: at [159].

30 Considering all the aforesaid culpability factors, the Respondent’s culpability was at least moderately high: at [160].

31 The harm caused by the Respondent’s misconduct was at the lower end of the moderate range. Although the Last Will and the First Will were materially similar, this was fortuitous, and did not discount the fact that: (a) the potential harm could have been far more severe than the actual harm that eventuated; and (b) the Testator ended up signing a document which was in fact not the document that he had indicated he wished to sign. However, this had to be weighed against the fact that while the Testator had previously changed his wills several times, he lived for more than a year after executing the Last Will and did not revisit it, apart from providing for the bequest of two carpets to Mr LHY in the Codicil: at [161][163].

32 Taking into account the degree of culpability and harm as well as the relevant case precedents, the Court held that a 15-month term of suspension was the appropriate sanction to impose: at [169][174].

 

This summary is provided to assist in the understanding of the Court’s judgment. 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 judgment.

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