Below is a letter by the Law Society of Singapore in response to an article published on 27 January 2003 in Streats entitled ‘When lawyers slip clients pay’. It was first published for members’ information in the Law Society’s weekly newsletter, eJus News, on 4 February 2003.

To The Editor

Streats

The Advocate’s Dilemma

I refer to the article headed ‘When lawyers slip, clients pay’ (27 January 2003). The impression given in the article of the legal profession in Singapore is unfair. It suggests that lawyers regularly incur unnecessary costs for their clients.

First of all, it is important to understand that persuading a court in a client’s favour through written and oral advocacy is an art, not a science. Which piece of evidence will persuade a particular judge is a hard question even for an experienced advocate. For this reason, an advocate is duty-bound to present his client’s case as fully as available court resources allow. Sometimes, clients insist on particular points being made, and it would be a brave (and foolhardy advocate) who refuses to make those points. Tenacity is a quality to be found in all good advocates, because, as an English Chancery judge, Robert Megarry, once said, ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’

Lawyers will always heed and take to heart all comments made and concerns expressed by the Honourable Chief Justice. But it is unfair to take those comments and concerns beyond the context in which they were raised.

It is important to appreciate the distinction between costs payable by the client (for which the guiding principle is the client’s agreement) and costs payable by the losing party to the successful party. A client may want his lawyer to take 10 points when perhaps only two or three might do, or take the cautious route of tendering all documents even if some are of limited relevance. The client must pay his lawyer for all the work done on his instruction. But when it comes to recovering those costs from the opposing party, the court controls the process and applies a different test, namely whether the costs have been reasonably incurred in the circumstances of the case, and will resolve any doubts in favour of the opposing party.

When a lawyer prepares a core bundle for an appeal, he must ensure that all documents that he relies on in his written case are included, as well as all documents required for context. He must also anticipate his opponent’s arguments, and possible questions by the court. He must put in any documents that he may need to rely on to rebut those arguments or answer those questions. A core bundle is not limited to documents to which the advocate will refer in his oral submission. The client’s interest will be prejudiced if a point is raised by the opponent or the court and the relevant rebutting documents are not in the core bundle. Most clients will not want to take this risk and will prefer to pay the filing fees for the additional documents, especially when the amount at stake is large.

The Law Society has recognised that the charge of $0.30 per page for photocopying is too high given the reduced costs of photocopying machines and notwithstanding the increased costs of labour. That is why the Law Society is amending its practice direction of 1989 to revise the charge to $0.15 per page. This is in line with the recommendation of the Honourable Chief Justice. The Supreme and subordinate courts adopted the same charge of $0.30 per page prior to this recommendation.

Since 1994, the Law Society has run advocacy workshops for its members. Among the principles that the trainers seek to impart are the importance of getting to the point quickly and not burying the good arguments in a heap of weaker ones. These workshops have been very successful, and attracted very high attendance. This shows that the profession is prepared for life-long learning and improvement.

Indeed, the profession has become internationally competitive, with Singaporean lawyers increasing their presence in international arbitrations, here and abroad, both as advocates and as arbitrators. There is much for Singaporeans to be proud of in the way in which the legal profession has responded to the challenges of the past five years.

In conclusion, as lawyers we know, in the wise words of retired Justice of Appeal, L P Thean, ‘Scolding from the court is an occupational hazard; it goes with the job of an advocate.’ Within the profession we know what a judicial scolding means, and how to take it. But scolding should not be lifted from its context, nor applied to all lawyers.

Yours faithfully

Arfat Selvam
President
The Law Society of Singapore