PRESIDENT'S MESSAGE

How Do You Act
Against Another Lawyer?

At a recent public seminar on ethics, I raised this question for discussion.

In his usual tongue-in-cheek style, our panelist Chelva Rajah, SC said: “Very carefully”. But that flippant remark contained more than a kernel of truth.

I think all practising lawyers agree that in principle there should be no inhibition against one lawyer acting against another (the “Affected Lawyer”), otherwise lawyers would be free to commit mayhem without being liable to account for their conduct.

However, when push comes to shove, many lawyers will give a multitude of reasons why they do not wish to act against other lawyers in general, or certain lawyers in particular. Some of these reasons were discussed at the seminar, and include:
1.     the Affected Lawyer being a good friend of the lawyer asked to act; and

2.     the Affected Lawyer being from a firm with whom the lawyer asked to act has a professional relationship.

These reasons are understandable, and all I seek here is to set out my personal reflections on when and how I would act against another lawyer.

1. Where the Affected Lawyer is a friend of mine

I would consider what exactly is the nature of the claim or defence I am asked to maintain against the Affected Lawyer. Does it contain serious allegations of personal or professional misconduct which might lead to disciplinary and even criminal action? If so, I believe I would feel inhibited in pressing the charges which might lead to such an outcome, and I would tell the client:

“You are entitled to a lawyer to represent your interests in this case, but I am not the best lawyer for you because I could not press your claim with the same vigour if the other party were unknown to me. Even if I say now that I could, you would know that this lawyer is a friend of mine, and if I did not achieve the result you wanted, you might wonder whether I had tried hard enough. That would lead to mistrust between you and me, and I cannot enter into a client relationship where that is a significant possibility.”

However, there are times where I would act if (a) the charges were not such as to give rise to disciplinary action (eg, straightforward cases of professional negligence); and (b) my representation of my client might actually achieve a better result for the Affected Lawyer than if a stranger were representing my client. For example, if I were shown papers which demonstrated that the Affected Lawyer had clearly been guilty of professional negligence or was having some minor disagreement with my client which I thought I could resolve without litigation, I might take on the brief because I could leverage on my friendship with the Affected Lawyer to persuade him that the matter should be resolved without going to court because I would not knowingly pursue a course of action against him which I did not believe he deserved. If, for example, it was clear that the Affected Lawyer had failed to file a writ within the period of limitation which thus meant that the client’s claim was now time-barred, I might feel that it would be best for him (as well as for my client) for the matter to be settled out of court, and that, given my relationship with the Affected Lawyer, I could more easily achieve a settlement than another lawyer.

2. Where the Affected Lawyer is not known to me

I would still consider the nature of the charges that my client would require me to make against the Affected Lawyer and consider whether I would feel comfortable making these assertions against the Affected Lawyer. Again, my task would be easier if I knew that the outcome of proving my client’s case would not result in disciplinary action or more serious consequences for the Affected Lawyer. Having said that, if the charges were serious and I believed that they were made in good faith, I would take on the brief since the client must
have access to justice. But I would keep a careful eye on the allegations made by my client and would at least satisfy myself that they were well founded before advancing them, instead of blindly repeating my instructions (indeed, this is something that we should do even against non-lawyer counterparties, but I suppose our antennae become especially alert when a lawyer is the focus of our clients’ allegations).

3. How would I go about initiating a case against the Affected Lawyer?

Where the Affected Lawyer is the potential defendant, my practice is to take as full instructions as I can before I even write a letter before action, so that I know as much as I can about what the case is about, rather than “shoot first and ask later”. When I have acquired sufficient knowledge and have formed a view that my client has a legitimate complaint or defence against the Affected Lawyer, I will usually (whether or not I know him or her) call up the Affected Lawyer (or his or her lawyer) and arrange a personal meeting before I formally launch into attack or defence mode. At this meeting, I will set out the facts as I understand them and explain my analysis of the legal
position and invite the Affected Lawyer (or his or her lawyer) to comment on it. In particular, I will ask the Affected Lawyer to correct me on any facts which I have represented with which he or she does not agree, so that we can discuss whether my legal analysis of the Affected Lawyer’s (or my client’s) liability is still valid in view of these corrected facts. If the corrections are material to my client’s position, I will then go back to my client and see if my client wishes to amend his position or whether he maintains his version of the facts over the Affected Lawyer’s corrections. I will then go back to the lawyer and see if such differences can be reconciled (or discarded) to see whether we can reach agreement on the legal analysis, or whether we have to agree to disagree. But at least the Affected Lawyer will know that I have done due diligence and given due consideration to his or her representations before I enter into litigation mode, and I would then have no qualms about pursuing my case on
behalf of my client in the normal way as long as I continue to believe in my client’s factual assertions over the Affected Lawyer’s assertions.

4. How would I prosecute a disciplinary action against an Affected Lawyer?

What I say in point 3 above cannot apply to disciplinary actions because procedures for such actions are prescribed by statutes, and there is little discretion that is vested in Counsel for the Law Society. However, when I have prosecuted Affected Lawyers on behalf of the Law Society, I have always tried to behave in a manner I wish all government prosecutors would follow, ie, not anxious to secure a conviction for the sake of it, but determine
that all relevant facts are presented fully and fairly before the Tribunal, and to give the Affected Lawyer as much opportunity as may be reasonable in the circumstances, to present his or her defence. In my mind, I draw a distinction between cases where:
1.     real harm has been caused by the Affected Lawyer to a client or other party; and

2.     the Affected Lawyer may have violated a canon of professional conduct but there is no direct victim except the honour of the professional or the integrity of the administration of justice.

My own view (which may be controversial) is that there is a reasonable distinction between these two kinds of cases, and I may press a little harder where I see real harm done than where an offence is committed in the abstract. Nevertheless, there are cases where an act of professional misconduct which does not result in any immediate harm still deserves to be punished severely eg, an unsuccessful attempt to suborn witnesses or a deliberate and material misrepresentation of fact to a Court or a Tribunal which is discovered and not acted upon.

5.   Would there be any difference if I were instructed to act in a matrimonial case against an Affected Lawyer?

The generalizations made in points 1 and 2 above will not apply here. Again, I draw a distinction between an Affected Lawyer who is a personal friend and one who is not well known to me. While I would still try, as far as possible, to follow the procedures described in point 3, I would have to accept the strong possibility that, if I act against an Affected Lawyer who is a friend, that friendship is likely to end after the end of the case, because most people involved in a matrimonial dispute find it difficult to think dispassionately about the rights and wrong of such a dispute. Nevertheless, there are cases where I have acted against a personal friend in a matrimonial case,
but only with his or her consent (and I extend that principle to friends who are Affected Lawyers). There are cases where a spouse of an Affected Lawyer engages a mutual friend to act in the hope that the Affected Lawyer would then be more reasonable in discussing how to settle the outstanding matrimonial issues amicably. Normally, this technique works best where the outstanding issues are not contentious. Indeed, in matrimonial cases generally, it is not always the best idea for a spouse to pick an “out to kill” lawyer as his or her chosen gladiator to do matrimonial combat unless the spouse feels that combat is indeed what is required to gain justice. Instead, the most appropriate matrimonial lawyer is often one who will have mediation skills sufficient to persuade the other spouse
to resolve the matrimonial differences with the minimum of contentious litigation.

I am not sure that other lawyers will adopt the same approaches to this problem, but I hope my remarks will give some food for thought in an area which is not guided by prescribed rules.

Michael Hwang, SC
President
The Law Society of Singapore