COLUMN Disciplinary Dos and Don’ts — Understanding Your Duty to Be Fit to Practice

Understanding Your Duty to be Fit to Practic

The guiding principles for advocates and solicitors on their overall professional duties and responsibilities are succinctly summed up in r 2 (2) of the Legal Profession (Professional Conduct) Rules (the “Rule”).

The Rule provides that an advocate and solicitor shall not in the conduct of his practice do any act which would compromise or hinder the following obligations:
1. To maintain the Rule of Law and assist in the administration of justice;

2. To maintain the independence and integrity of the profession;

3. To act in the best interests of his client and to charge fairly for work done; and

4. To facilitate access to justice by members of the public.

These duties are honourable and indeed heavy. It requires an advocate and solicitor to be stoic and withstand the challenges, both physical and mental, of legal practice.

Not surprisingly, therefore, the Legal Profession Act contains various provisions relating to fitness to practice. After all, it is an important feature of public protection that credible deterrents are in place to prevent misconduct due to a lapse in physical and/or mental fitness of a lawyer.

While the Legal Profession Act provides that the Law Society is entrusted with the duty to maintain standards within the profession, the primary responsibility for ensuring compliance with a lawyer’s regulatory obligations must rest with the lawyer himself.

How Fit is Fit?

Members’ attention is drawn to s 25C of the Legal Profession Act which sets out instances when the Attorney General or the Council of the Law Society may adopt certain measures when they are satisfied that a lawyer is incapacitated by any physical or mental condition to such an extent as to be unable to attend to his practice, or that a lawyer’s fitness to practise appears to have been impaired by reason of his physical or mental condition.

Under this provision, the Council may if it is satisfied that a solicitor‘s fitness to practice appears to have been impaired by reason of the solicitor’s physical or mental condition, direct a solicitor to stop practising. Council must then apply to Court within seven days from the date the direction is given for an order that the solicitor submit to a medical examination. The direction ceases to have effect if the application is not made within the seven-day period.

Additionally, s 25A of the Legal Profession Act sets out other measures available to the Attorney-General or the Council of the Law Society in relation to the issuing of practising certificates of members whose fitness to practise is in question. The Attorney General or Council may request the Registrar to refuse an application for a practising certificate or to issue a practising certificate to the solicitor subject to conditions. One of the instances when these measures may be taken is when the Attorney-General or Council is satisfied that the solicitor is incapacitated by illness or accident or by the solicitor’s physical or mental condition to such an extent as to be unable to attend to his practice.

Criteria to Determine Fitness to Practice

Whilst all relevant circumstances will be taken into account to determine fitness to practice, the presence of any of the following factors would require the Law Society to take the necessary steps to consider the lawyer’s fitness to practice:
1. Expiry of the period of suspension from practice;

2. Discharge from bankruptcy;

3. Imprisonment in any civil or criminal proceedings;

4. Conviction for an offence involving fraud or dishonesty;

5. Conviction for an offence arising from misconduct of his practice of law;

6. Misconduct in any other professional capacity;

7. Adverse Determination by the court in relation to the lawyer’ fitness to practice law under s 25C of the Legal Profession Act;

8. Incapacitation and inability caused by illness or accident or by physical or mental condition or unsoundness of mind;

9. Breach of the Legal Profession (Solicitors Accounts) Rules; and

10. Financial Indebtedness for outstanding judgments which remain unsatisfied for a considerable period and/or compositions or deed of arrangements entered for the benefit of creditors.

Under the First Schedule, Part 1 of the Legal Profession Act, the Society may intervene into a law practice in certain circumstances including where a solicitor’s fitness to practise has been called into question.

The Challenge

The Council of the Law Society is developing its vision for a proactive rather than reactive approach to determining fitness to practice.

Towards this end, it will require members to take on the responsibility of ensuring that within each law practice the lawyers understand that they have a primary responsibility to look out for any lapses within their own law practice. It is the responsibility of each law practice to be mindful of matters of concern within their own law practice and if necessary raise these concerns and have them investigated.

The Law Society carefully considers the responses from law practices that are made to its initial enquiries on matters relating to possible issues of misconduct or fitness to practice. Often, the responses would determine whether or not further investigation or regulatory action is required. The focus is on helping lawyers and law practices manage their own compliance although this has to be done without compromising on the protection of the public interest

A Possible Scenario

A lawyer is faced with a complaint of misconduct. He is also alleged to be suffering from a mental condition.

The Law Society will, on receipt of such information, conduct a thorough investigation into the personal condition of the lawyer and in particular whether there is evidence of any circumstances which indicates, amongst other things, direct personal responsibility for recklessness, personal motive such as financial gain, persistent non-compliant behaviour, failure to co-operate, unsatisfactory medical reports and adverse personal regulatory history.

After careful consideration and based on the specific circumstances of the case, the Council may be satisfied that an approach that concentrates its focus on rehabilitation rather than repression, is appropriate.

The lawyer may, however, be required to be closely supervised and mentored from within the law practice. At the same time, he may be required to ensure that he is made aware of his accountability to his clients and his duty to ensure he continues with medical treatment of his condition. In suitable cases, if the lawyer can be closely supervised by a senior practitioner on strict terms and conditions and on a case by case basis, the lawyer may still be able to practise albeit within certain restricted conditions.

These measures are not conclusive, and will depend on the circumstances of each case.

Peer support that is responsible and accountable is an essential and necessary component of the Law Society’s vision for a proactive approach to the issue of fitness to practice.

Ultimately, of course, each case will have to be considered on its own facts and circumstances with due regard to interplay of the public and personal interests in such situations.

Ambika Rajendram
Director, Conduct Department
The Law Society of Singapore