Voidable Transactions in the Context of Insolvency

FEATURE

The Litigant in Person
– Duties of a Family Lawyer in Divorce Cases

This article discusses the family lawyer’s duty to the opposing party who is litigating a divorce matter in person at each stage of the proceedings.

It is not uncommon to encounter a litigant in person for divorce proceedings. Needless to say, most lawyers would rather deal with a fellow lawyer than with a litigant in person as an opponent. Litigants in person are often emotional, and sometimes aggressive. They are usually unfamiliar with legal procedures and principles. Some may not even be able to read and write in English. All this makes thetask of dealing with a case more difficult and time-consuming for the court, as well as for the other litigant and his lawyer.

What can you as a lawyer, do to assist the court, in order to help the matter progress as expeditiously as possible, without crossing the line to giving advice and assistance to your opponent?

There are two aspects to this balancing act: firstly, the manner in which you conduct your case, secondly, the manner of your interaction with the litigant in person.

As a general rule, when interacting with the litigant in person, you should treat him with the same respect as you would an advocate and solicitor – even though that courtesy may not necessarily be returned to you. You should not, however, have to give him more favourable treatment than you would give to a fellow dvocate and solicitor – though when making submissions to the court, it would be polite to avoid legal jargon as far as possible, so that the litigant in person can follow your submissions.

Negotiations

Your first encounter with the litigant in person would often be before divorce proceedings are even filed. Your client instructs you that she wants a divorce, and the litigant in person attends at your office to discuss the matter. Or the litigant in person may attend at your office after receiving the divorce papers, and ask to iscuss the matter. It is common for a lawyer to assist his client to hold settlement talks with the litigant in person in order to arrive at a consent order, either before or after any proceedings are filed in Court.

You may wish to do the following when you are engaging in such negotiations with an unrepresented party:
1. Meet with your client beforehand, to understand her case and her position. Come up with an agreed (and hopefully realistic) set of proposals to make to the litigant in person, rather than getting both parties to surface their proposals for the first time at the settlement talk. This means that if you find your client’s proposals unrealistic or impractical, you can tell her privately beforehand, rather than saying it in front of the litigant in person.

2. Advise the litigant in person at the start of the session that you are not his lawyer. You will act in the best interests of your client –though you will try your best to facilitate an agreement between the parties. You are under no duty to advise the litigant in person of his rights and whether a particular settlement is advantageous or disadvantageous to him. This is something you should make very clear to the litigant in person, in case he is relying on you to protect his interests.

In this regard, it is worth noting what the Court of Appeal said in the case of The Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR 308:1

[Lawyers] must begin from the assumption that lay persons are more likely to rely upon them than not – if only because they are professionals schooled in the law and whose calling is therefore to advise on the law in all its various aspects. They must, wherever applicable, advise laypersons to seek independent legal advice if they are unable to assist – for example, because of a possible conflict of interests..

(per Andrew Phang JA at para 68)

… r 25 of the Professional Conduct Rules prohibits a solicitor putting himself or herself in a situation where there is a conflict of interests. Solicitors owe this unflinching loyalty to their clients, which is both fair and commonsensical. And if they are unable to satisfy all their clients in a particular transaction because of a diversity of opposing interests, such solicitors must either seek the informed consent of the parties or else extricate themselves from the conflict by declining to act for some or all of them. If the solicitor continues to act for some of the parties, he must simultaneously ensure that the other parties are not laboring under the assumption that he continues to act on their behalf.

(per Andrew Phang JA at para 74)

Rule 30 of the Legal Profession (Professional Conduct) Rules also states that an advocate and solicitor shall not advise a person “whose interests are opposed to that of a client he is representing on any matter and shall inform such person to obtain legal advice.” However if the person does not obtain such independent legal advice, “the advocate and solicitor is under a duty to ensure that the person is not under the impression that his interests are protected by the advocate and solicitor.”

3. Err on the side of caution – if the agreement is in your view disadvantageous to the litigant in person, urge him to seek independent legal advice, especially if he seems confused, distressed, or unsure of what to do. If he cannot afford a lawyer, there are legal clinics he can go to, run by the Law Society,2 or the legal advice service run by the Legal Aid Bureau.3 It would be good practice to give him a copy of the proposed draft consent order for his consideration, and to give him some time to decide if he wants to sign it – preferably accompanied by a letter from you urging him to get independent legal advice on the matter.

4. As further protection for yourself, in cases where you think the litigant in person may not have fully grasped the import and implications of the draft consent order, even though he says that he agrees to it, you can apply for a consent order hearing in court, and ask him to attend court to confirm the terms of the draft consent order before the judge. This is especially useful where the litigant in person does not read English well, and has relied on you to translate the terms of the draft consent order to him.

5. When negotiating with the litigant in person, it is always best to err on the side of caution – your role should be as an adviser for your client, and to identify the issues for the parties, in order to alert them of possible problems eg, if parties want split custody, the court will expect them to justify why this is in the children’s best interests, if one party wants to buy over another party’s share of the flat, he will have to be able to raise the money to do so – can he get an HDB loan? etc. You should not play the role of a mediator, since you are the lawyer for one party. Do not be too vigorous in your efforts to achieve a settlement, especially in encouraging the litigant in person to compromise with your client.

In this regard, note r 53A of the Legal Profession (Professional Conduct) Rules which states:

An advocate and solicitor shall not take unfair advantage of any person or act towards anyone in a way which is fraudulent, deceitful or otherwise contrary to his position as advocate and solicitor or officer of the Court.

Status/Pre-Trial Conference

The next stage you are likely to encounter a litigant in person is during a status or pre-trial conference. Litigants in person will turn up for the conference, with a Registrar’s Notice in hand, saying that they do not agree to the divorce, they do not want to sell the flat, etc. During the conference, the court would usually explain the stage of proceedings to the litigant in person and ascertain his position on the issues at hand, before giving directions so that the matter may progress.

After the conference is over, the litigant in person may often ask you to explain the directions which were given by the court or things said by the court, or ask you what he should do next. You should not give any substantive advice eg, how to draft his affidavit of means, or provide precedents to him, but you can refer him to sources of information eg, the Family Court section of the Subordinate Courts website,4 sources of potential help eg, legal clinics, and explain the next step your client intends to take, depending on what he does or does not do eg, if he does not file his Defence, that your client has instructed you to then set the matter down on an uncontested basis, and the matter will be fixed for an uncontested divorce hearing; if he fails to file his affidavit of means by the next ancillary pre-trial conference, that you intend to then apply for an ancillary matters hearing date, etc.

It would be best not to engage in a lengthy private conversation with the litigant in person – in case he alleges that you agreed to something that you did not agree to or he told you certain information which he in fact did not, or he gets the impression that you will help to protect his interests. Explain politely that you are not allowed to give him any advice, or assist him in any way, as your duty is to your client. In particular, tell him that anything he says to you cannot be in confidence – you may repeat whatever he says to your client.

Mediation

Parties often hope to achieve a settlement at mediation. The following sets out various ways in which one could try to achieve a productive mediation session with a litigant in person.

Pre-mediation

Your pre-mediation preparation for a mediation session with a litigant in person should be as thorough as with a represented party – perhaps even more so, as the litigant in person may be less able to assist the court in terms of summarising his case, and identifying key issues and information.

At the pre-trial conference before the mediation session, it would be useful to:
1. ask the court to direct the litigant in person to bring certain documents to evidence his assets and income, such as his CPF housing and other statements, list of expenses, income documents, documents evidencing his debts, and so on.
2. ask the litigant in person what proposals he has to settle the matter.

For your part, you may wish to:
1. identify and take full instructions from your client on all outstanding issues – get as much key information as possible (CPF statements, housing loan statements, list of expenses, income documents,
documents evidencing debts etc).

2. advise your client on the strength and weaknesses of her case, her Best Case Scenario, and her Worst Case Scenario – this functions as a “reality check”, and helps to moderate her expectations.

3. identify the information gaps.

Mediation session

If you have some time before the mediation session begins, it would be useful to take a look at the documents and information the litigant in person has brought, while you are waiting outside the mediation chambers. It is also possible to negotiate with the litigant in person outside the mediation chambers. However, if he appears confused, distressed or aggressive, it would be best to leave it to the mediator to go through the issues with the litigant in person.

At the mediation session, you may wish to do/keep in mind the following:
1. Summarise the case and key issues for the mediator, stating your client’s position, and pointing out any information gaps;

2. Ask for the litigant in person’s position, and the mediator’s indications on the issues;

3. Encourage your client to compromise, based on the mediator’s indications, if the indicated outcome is somewhere between
your client’s Best Case Scenario and Worst Case Scenario;

4. If the litigant in person’s offer is worse than your client’s Worst Case Scenario, then you should warn your client about this, though there is no need to actively discourage her from agreeing to the litigant in person’s offer, if she is strongly inclined to do so;

5. Make pro-active suggestions to facilitate settlement, eg, if your client has agreed in principle to amend her Statement of Particulars if the litigant in person agrees to a divorce, then either prepare suggested amendments to the Statement of Particulars before mediation, for the litigant in person to consider either before or at the mediation session, or suggest some amendments for both parties to consider during the mediation session; or if your client wants 60 per cent of the net sale proceeds after the sale of the matrimonial flat, but the litigant in person says he needs more cash and therefore only wants to give her 50 per cent, you could suggest that your client take 10 per cent of her 60 per cent share by way of a transfer of monies from the litigant in person’s CPF account to her CPF account after the sale of the flat, etc;

6. It is not your duty to advise the litigant in person of his rights, or whether the suggested settlement terms are advantageous or disadvantageous to him. If he has any concerns or queries about the issues, which go beyond merely providing him with factual information, then you should advise him to seek independent legal advice, or speak to the mediator; and

7. The litigant in person may request to speak with your client alone. It is important to check privately with your client whether she is comfortable with doing this, especially in a case where she has alleged that she has experienced family violence from the litigant in person.

As far as your own client is concerned, you may wish to do/keep in mind the following:
1. “Informed consent” with the best possible information is the key. Explain the implications of the settlement thoroughly to your client. It is a useful exercise to get your client to repeat the terms of the settlement back to you, and also the implications of the settlement;5

2. Call a “time-out” if your client appears confused, distressed, or unsure of what to do. Check with your client if she would
like to have a word with you privately before she makes a decision; and

3. Your client may bring third parties (children, friends, relatives, etc) along to the mediation session – you will have to
ensure that your client understands what is going on, and that the third party does not dominate and make all decisions for her.
However, it is also important to ensure that the third party understands the settlement and its implications – otherwise the
settlement may unravel when the third party goes home with your client and gives his or her views on the same.

Preparation for Trial - Discovery, Filing of Affidavits, Etc

If matters cannot be settled at mediation, then you will have to prepare your case for trial. Your first duty is to your client, to put her best case forward. You should prepare the case for trial in the same way, whether it is against a represented or unrepresented party. If the litigant in person fails to furnish certain documents and information on his assets and means, for example, there is no reason why you should not take out a discovery application. (However, a practical, though limited alternative, may be just to ask the court at the ancillary matters pre-trial conference to make. an order requiring CPF Board to reveal information on his various CPF accounts to you.)6

Hearing/Trial

As stated earlier, your first duty is to your client, to put her best case forward. The fact that the other side is a litigant in person should make no difference to this.

However, at the hearing or trial, it is not uncommon for the litigant in person to turn up with a stack of documents in a bag, which you have not seen before. He may make allegations that your client has not dealt with in her affidavits, as you are hearing them for the first time.

Your first duty is to your client, who will probably not want the matter adjourned, and who would object to any new evidence tendered that she has not had a chance to reply to. You should therefore object to the admission of the new evidence, and to any adjournment of the matter. However, if the court is willing to let the matter proceed with the new evidence, then it would be necessaryto apply for an adjournment to take further instructions from your client. You may also wish to request the court to order the litigant in person to confirm that there are no further documents or information that he is able to provide, and that whatever he has provided
should be put into an affidavit.

Conclusion

It is understandable if the litigant in person is anxious, emotional or aggressive in court and when interacting with you outside court. After all, his status, his assets and/or his relationship with his children may all be decided in the court proceedings. He may feel bewildered, and at a disadvantage because of his unfamiliarity with court proceedings. The important thing is that you do not reflect his mood in your own demeanour, no matter how agitated (or indeed, provocative) he may be.

Keep a calm tone and neutral expression, as far as possible. Speak simply and clearly, and avoid using legal jargon, so that he can follow your submissions in court. Maintain eye contact with him when speaking to him or when referring to him in court. Small courtesies (that you would extend to any stranger) will go a long way in making for a pleasant hearing atmosphere – for example, holding the door open for him when entering the courtroom, gesturing him to where he should sit, letting him know where the toilets are if he needs them, etc.

Your relationship with the litigant in person may not be cordial, but as far as possible, it should be polite and civil. He should view you as his opponent, but not as his enemy.

Lim Hui Min* **
Legal Aid Bureau
E-mail: LIM_HUI_MIN@lab.gov.sg

* This article is based on a short talk given by the author as a panelist at a dialogue session on ethical issues in family law practice organised by the Singapore Academy of Law on 12 November 2009.

** The author is a Second Deputy Director at the Legal Aid Bureau. The views expressed in this article are her own and not those of the Bureau.

Notes

1 In this case, a solicitor acted for an individual, B, who applied to be the administrator of an estate. The other beneficiaries to the estate had attended at the solicitor’s office and had asked him some questions about the case, including whether it was possible to appoint a co-administrator. The solicitor answered their queries and discouraged them from appointing a co-administrator. The solicitor did not make clear to the beneficiaries that he was acting solely for B, and not for them. With the solicitor’s assistance, B subsequently mortgaged the property belonging to the estate to secure a bank loan for his own purposes. The beneficiaries were not aware of the existence of the mortgage until the bank sought to foreclose the property for B’s failure to keep up with the payments for the bank loan. Two of the beneficiaries lodged a complaint against the solicitor to the Law Society regarding this. The court held that there was an implied retainer between the solicitor and the beneficiaries, and he owed certain duties to them. However, the court also went on to state that the finding of an implied retainer was not a prerequisite to the finding that the advocate and solicitor was guilty of grossly improper conduct in the discharge of his professional duty or a breach of any rule of conduct made by the Council of the Law Society under s 83(2)(b) of the Legal Profession Act, or conduct unbecoming of an advocate and solicitor under s 83(2)(h) of the said Act.

2 http://www.lawsociety.org.sg/probono/community_legal_clinic.aspx.

3 www.lab.gov.sg; This is subject to the applicant passing the Legal Aid Bureau’s means test.

4 www.subcourts.gov.sg.

5 See r 21(1) of the Legal Profession (Professional Conduct) Rules which states, “An advocate and solicitor shall explain in a clear manner, proposals of settlement, other offers or positions taken by other parties which affect the client”.

6 See http://app.subcourts.gov.sg/family/page.aspx?pageid=3747 to obtain the template for the standard CPF order for information to be furnished on the defendant’s CPF accounts.