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Disciplinary tribunal allowed to consider past cases in deciding penalty for lawyer

Disciplinary tribunal allowed to consider past cases in deciding penalty for lawyer

Source: Straits Times
Article Date: 22 Feb 2021
Author: K.C. Vijayan

The Court of Three Judges clarified this novel issue when it remitted the case of a lawyer to the disciplinary tribunal. 

The top court for dealing with lawyer misconduct has ruled that a disciplinary tribunal can consider antecedents when deciding on the appropriate penalty for an errant lawyer.

The Court of Three Judges clarified this novel issue when it remitted the case of Ms Constance Paglar to the disciplinary tribunal.

She was charged with breach of professional conduct rules.

"It would be incongruous if the Court of Three Judges but not the disciplinary tribunal is entitled to consider antecedents at the sentencing stage, when both are engaged in the same task of sentencing and might even be imposing the very same sanction," said Justice of Appeal Andrew Phang in decision grounds earlier this month.

"In other words, there is no principled reason why antecedents should only be relevant to sentencing before the Court of Three Judges (based on the Legal Profession Act) but not before the disciplinary tribunal," he added on behalf of the court, which included Justice of the Court of Appeal Judith Prakash and Judge of the Appellate Division Belinda Ang.

The Court of Three Judges noted that there is no express provision in the Legal Profession Act allowing the disciplinary tribunal to take antecedents into account. "This is unfortunate and, as this case amply illustrates, is apt to cause confusion. Legislative reform in this regard would be welcome as well," it said.

Ms Paglar, a lawyer of 22 years' standing, was charged with failing to keep a client reasonably informed of the progress of the client's matter, under r5(2)(e) of the Legal Profession (Professional Conduct Rules) 2015.

She pleaded guilty before a disciplinary tribunal, which deemed the case to be of sufficient gravity to be referred to and dealt with by the Court of Three Judges.

In judgment grounds, the court noted certain "unusual circumstances" that surrounded the case, in particular that both the Law Society, as prosecutor, and Ms Paglar were of the view that the disciplinary tribunal could deal with the matter and there was no cause of sufficient gravity that required the case to be referred to the court.

During the disciplinary tribunal hearing, the Law Society had submitted that the tribunal should impose a $6,000 penalty, while Ms Paglar had said that a reprimand would suffice. It emerged that Ms Paglar had in a previous case pleaded guilty for failing to keep her clients informed of the progress of their respective claims over an extended period. In that case, she was ordered to pay $4,000 as penalty.

At the hearing for the latest case last November before the court, her lawyer R.S. Bajwa argued that the disciplinary tribunal had erred in finding that there was cause of sufficient gravity for referring the case to the court and urged that the matter be remitted to the tribunal.

With regard to the amended charge, the court found there was no cause of sufficient gravity for the case to be dealt with by the court.

The case related to a 2018 personal injuries claim arising from a road traffic accident in which Ms Paglar's client alleged that the lawyer had failed to inform him of the $3,800 offered by the vehicle insurer which she had accepted.

The court found the amended charge involved more than a merely technical breach and was supported. It remitted the case to be dealt with by the disciplinary tribunal as the matter was not serious enough to be referred to the court.

It held that the tribunal could consider antecedents when determining the measures to be imposed. It cautioned the antecedents could be disclosed only for the purpose of sentencing and not at the stage when the lawyer's liability was being determined, and should not be used for deciding if the case was serious enough to be referred to the court.


ANTECEDENTS RELEVANT AT TRIBUNAL STAGE

It would be incongruous if the Court of Three Judges but not the disciplinary tribunal is entitled to consider antecedents at the sentencing stage, when both are engaged in the same task of sentencing and might even be imposing the very same sanction.

JUSTICE OF APPEAL ANDREW PHANG, in decision grounds this month in the case of lawyer Constance Paglar, who was charged with failing to keep a client reasonably informed of the progress of the client's matter.

Go-to counsel for defending lawyers who are in trouble

Senior lawyer R.S. Bajwa, who represented Ms Constance Paglar in a misconduct probe before the Court of Three Judges, appears to be the go-to counsel for lawyers facing disciplinary tribunal proceedings.

He has successfully represented lawyers at various stages of disciplinary proceedings over several years, including in a landmark High Court decision on a judicial review involving lawyer Alan Shankar.

In the 2006 case, a disciplinary committee had found Mr Shankar guilty of misconduct under the Legal Profession Act.

Mr Bajwa went on to argue Mr Shankar's application for judicial review of the decision before the High Court, which eventually quashed the disciplinary committee's decision for apparent bias.

The judgment grounds issued by then Judicial Commissioner Sundaresh Menon, who is now Chief Justice, is a reference point cited in relevant cases on the law of natural justice.

Separately, another case involving Top Ten Entertainment, which Mr Bajwa successfully argued in 2011 before the Court of Appeal, was reviewed by the apex court in its decision last month in the case of Iskandar Rahmat.

The decision allowed Iskandar, a former police officer currently on death row for the high-profile 2013 Kovan Road double murder, to have a chance to argue before the Court of Appeal that his defence team should be investigated for misconduct.

The five-judge panel held that complainants pursuing disciplinary probes against lawyers have the right to appeal all the way to Singapore's highest court. The court's decision overruled the legal position set in the 2011 Top Ten Entertainment case.

When contacted, Mr Bajwa said: "It is, in fact, more onerous to defend lawyers as there is always a public interest element to take into account in almost every regulatory hearing."

None of the disciplinary tribunal cases in which Mr Bajwa defended the lawyers was referred to be dealt with by the Court of Three Judges.

Referring to his success, he said: "They were probably undeserving cases which should not have reached the disciplinary tribunal stage, in any event."

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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