Court sets aside charges of 'gross misconduct' against lawyer

Mr Lee Kuan Yew's last will differed from his sixth and penultimate will in significant ways, including the distribution of his estate among his three children as well as the demolition of his house at 38 Oxley Road (left). ST FILE PHOTO
Mr Lee Kuan Yew's last will differed from his sixth and penultimate will in significant ways, including the distribution of his estate among his three children as well as the demolition of his house at 38 Oxley Road (above). ST FILE PHOTO

The late Mr Lee Kuan Yew did not view his daughter-in-law, senior lawyer Lee Suet Fern, as playing the role of his lawyer in the execution of his final will, according to the highest disciplinary body for the legal profession.

A Court of Three Judges based its decision on the legal precedent that a solicitor-client relationship arises only when both parties mutually intend to enter into one, or should reasonably have understood that they were entering into such a relationship.

This is so even if there is no formal documented agreement between them.

But such an implied retainer situation did not exist in the case of Mr Lee's last will, the court said in a written judgment yesterday.

Given her actions, Mrs Lee should have understood that she was acting as Mr Lee's solicitor in the preparation and execution of his last will.

But the same could not be said of Mr Lee.

The court therefore acquitted Mrs Lee of charges of grossly improper conduct in the discharge of her professional duties.

The charges, brought against her by the Law Society, had relied on there being a solicitor-client relationship between her and Mr Lee.

The court, however, found Mrs Lee guilty of alternative charges of misconduct unbefitting a solicitor and advocate - a charge that stands even if there is no implied retainer.

She was thus given a 15-month suspension.

Lee Kuan Yew still considered Kwa Kim Li as his lawyer

In its judgment, the court said there was insufficient evidence to conclude that Mr Lee had considered Mrs Lee his lawyer.

It noted that he had initially expected his usual lawyer, Ms Kwa Kim Li, to attend to the execution of his last will.

But he changed his mind because his son Lee Hsien Yang, Mrs Lee's husband, told him that Ms Kwa was uncontactable and appeared to be away, and that it was unwise to wait for her return before executing the last will.

The court said the elder Mr Lee changed his position as he believed that the draft will was identical to his first will, and that all that remained to be done was for him to sign it before two witnesses.

"We do not think (Mr Lee Kuan Yew) ever ceased to regard Ms Kwa as his solicitor, at least where matters pertaining to his estate were concerned, even though he, like Ms Kwa, was not fully apprised of the situation," the court explained.

"(Mr Lee Kuan Yew) proceeded as he did essentially because (Mr Lee Hsien Yang) had assured him that he could proceed in that way, and that (Mrs Lee) would assist with only the administrative task of finding witnesses for the execution of the last will.

"While this was an inaccurate portrayal by (Mr Lee Hsien Yang), on the limited evidence before us, we think that (Mr Lee Kuan Yew) proceeded as he did because of the advice of his son, and not because he reasonably regarded (Mrs Lee) as his solicitor for the preparation and execution of the last will."

The court thus found that Mr Lee Kuan Yew did not see Mrs Lee as his lawyer, preventing a solicitor-client relationship from arising.

'Implausible' for Mrs Lee to think no implied retainer

Still, the court held that Mrs Lee should have understood herself to have been acting as Mr Lee's lawyer.

It rejected her argument that she, too, viewed herself as merely assisting with the administrative task of finding witnesses for the execution of the last will.

The reason for its rejection is that Mrs Lee had put forward a draft of the last will as being ready for execution and represented this draft as the "original agreed will", which the court said amounted to legal advice.

Mr Lee Hsien Yang later cut Ms Kwa out of the process by not including her in the e-mail thread in which he urged his father to proceed with the execution without waiting for her.

The court said Mrs Lee could not have verified if the draft was identical to the first will, which she did not have a copy of. She also did not check with Ms Kwa if it was in fact the same will.

Mr Lee Kuan Yew had earlier indicated his wish to revert to the first will he had signed on Aug 20, 2011, and he proceeded to execute the last will on the sole basis that Mrs Lee had represented it as being identical to his first will.

The court said: "(Mrs Lee's) subsequent failure to qualify the crucial representations which she had made indicates that she knew, or must have known, that she was taking on the role and responsibility of being (Mr Lee Kuan Yew's) solicitor for the preparation and execution of the last will, at least to the limited extent of locating a copy of the executed version of the first will, checking the draft last will against it and ensuring that the draft last will was ready for execution."

It later emerged there were differences between the draft that became Mr Lee's last will and the first will, which he intended to sign.

Mrs Lee also made arrangements for the last will to be executed with her colleagues as witnesses, while personally monitoring the arrangements closely.

She saw to the safekeeping of an original copy of the last will after it was executed.

When Mrs Lee subsequently informed Ms Kwa of the execution of the last will, she did not alert Ms Kwa to the circumstances under which it had been executed, the court said.

As a result, any cause for concern pertaining to the accuracy of Mrs Lee's representations about the draft last will would not have been evident to Ms Kwa.

"Viewing all these matters objectively, we find it implausible that (Mrs Lee) could reasonably think that there was no implied retainer between (Mr Lee) and her," the court said.

A version of this article appeared in the print edition of The Straits Times on November 21, 2020, with the headline 'Court sets aside charges of 'gross misconduct' against lawyer'. Print Edition | Subscribe