Keeping Confidences and Posing Challenges

The legal profession is a keeper of confidences. This is a duty owed to the client, and arises from our role as adviser and representative. We drum this duty into young lawyers, warning them against casual discussions in public places. The principal exception to this is where the client is engaged in fraudulent or other criminal activity. A lawyer can also rely on confidential communications if needed to rebut allegations made against him by the client.

Separate but overlapping are the heads of privilege — documents and communications protected by privilege. In a society operating under the rule of law, it is essential that all should be able to seek legal advice or prepare for litigation without fear of their communications with legal advisers being used against them. Again, exceptions apply to permit disclosure by the legal adviser where a communication is made in furtherance of an illegal purpose or where a fraud or crime is committed by the client after the commencement of the retainer.

Recent international developments, and in particular, the recommendations of the Financial Action Task Force, have been founded on a view that lawyers may be used, almost always unwittingly, as conduits for money laundering, and other movements of funds in pursuit of illegal ends, including terrorism. The tension between these developments and legal privilege remains to be resolved.

Part of this Gazette’s purpose is to keep the profession abreast of legal developments, and this issue is no exception. It includes an article exploring recent (roller coaster) developments in the law relating to privilege.

Another part of the Gazette’s purpose is to communicate with our members. Council must lead the profession, and the President must lead Council. And so, in my monthly messages, I often share with members what we have done and what we are trying to do. Honesty requires me to share not just our hoped for directions, but also our more difficult challenges.

In my years with the Society, I have come to be glad of the 1st of May for reasons quite unconnected with its historical associations. My reason for relief is because it brings to an end the period of renewal of practising certificates. In recent years, this process has become more and more fraught as the numbers of lawyers who really struggle to make ends meet have grown. The Society does its best to help them, but ultimately a lawyer who wishes to continue in practice must simply comply with the rules, and pay the requisite fees and insurance. A new phenomenon has emerged, of a small number of lawyers not renewing their practising certificates and then entering a twilight zone of unauthorised practice. Whatever sympathy one may have for their financial plight, this conduct is unacceptable and can only bring the profession into disrepute. The Society has become more proactive and interventionist in a bid to head off individual problems before they become too serious. Undoubtedly, this has caused some resentment (lawyers are fiercely independent after all), but a more active policy has been adopted out of necessity. If the profession loses its good name, this will be bad for all of us, and may foster the (wrong-headed) view that outsiders would do a better job of regulating the profession and enforcing those regulations.

This May brings with it better things than the heartaches of April — we host an international conference on children and the law at the end of the month, and so have the opportunity to showcase how effective and progressive our profession has been in this field. We launch too a new book, The Art of Family Lawyering.

The practice of family law in Singapore is one of the clearest proofs of the importance of small firms and the part they play in access to justice for all. Yet, there is still a growing problem of litigants appearing in court unrepresented.

I believe that these two problems I have mentioned — lawyers finding practice financially unsustainable, litigants finding legal representation unaffordable — require urgent solutions. And perhaps there is a common solution — if we can only find effective ways to bring the cost of practice down. This is a challenge that I pose to myself, and to Council, to think boldly and creatively, in the interests of the profession and of the public, and to improve things before next April comes around, when, if things are no better, the Society will scramble once again to try to help members through the PC renewal process.

Philip Jeyaretnam, SC

President

The Law Society of Singapore