Yasho Dhoraisingam highlights some common queries on the application of Rule 71 of the Legal Profession (Professional Conduct) Rules 1998
In December last year, I received several calls from members on the application of the above rule. I therefore thought it would be timely to explain the application of the above rule .
Rule 71 of the Rules reads as follows:
Allegations
against another solicitor
71
(1)
An advocate and solicitor whose client has given instructions to include in
an
affidavit to be sworn whether by the client or his witness, an allegation made against
another advocate and solicitor, shall give the other advocate and solicitor an
opportunity to answer the intended allegations.
(2) In such a case, the answer of the other advocate and solicitor shall be included in the affidavit before the same is deposed to, filed and served.
Rule 71 is a codification of a Practice Direction of the Council, which was entitled ‘Affidavits’. The Practice Direction advised members that when they act professionally, they should not cause an attack to be made against a fellow solicitor or his firm (especially when that solicitor or firm is acting for the opposite party) by a deponent in an affidavit without first giving the solicitor or the firm an opportunity to answer the intended allegations. When the answer is forthcoming, the same should be included in the deponent’s affidavit.
Upon receiving a response, the solicitor may wish to advise his client or witness or the deponent himself may wish modify or withdraw the allegations.
The rule ensures that a fellow solicitor gives another solicitor or his firm an opportunity to provide the court a full and balanced picture when a solicitor or the firm not being a party to the proceedings would not have had an opportunity to respond.
The Practice Direction has its roots in the general principle now codified in Rule 47, that a practitioner treats a fellow professional colleague with courtesy and fairness.
Rule 71 does not apply when the solicitor or his firm does not act for a client or a party but is himself or itself a party to the proceedings.
A solicitor would be given the right to respond to affidavits as a party. The opposing solicitor is not required to treat him differently from any other party to a proceeding and apply the requirements of Rule 71.
Rule 71 would not apply if the allegations were made against a non-practising advocate and solicitor. The rule was enacted to govern conduct between members.
I was asked the query: what if the allegation was made against a non-qualified member of staff of a law firm and not an advocate and solicitor.
Under Rule
2(3), it is enacted that the Rules shall prevail only to the extent that they
are inconsistent to a Practice Direction issued by the Law Society.
The Practice
Direction is not inconsistent with the Rule. It is therefore still applicable.
The Practice
Direction makes reference to an attack against a firm.
An attack
against a non-qualified staff may amount to an attack on the firm.
For example, if
an allegation is made against a secretary of a law firm that she brought a blank
document to be signed by the client, it may amount to an allegation against the
partners or proprietors of the firm.
This firm should be given an opportunity to respond to the allegation before the affidavit is deposed.
Yasho
Dhoraisingam
Director, Professional Standards
The Law Society of Singapore
[Editorial
Note:
Members
with any further queries may call or write to Yasho at the Law Society.
If
members wish to read the original Practice Direction, the same was published
at page 34 of the Law Society’s Practice Directions and Rulings (1989
edition).]